Combating Disinformation: Freedom of Expression
 - Question

Lord Strasburger: To ask His Majesty’s Government what steps they are taking to protect freedom of expression in the course of their work on combating disinformation.

Lord McFall of Alcluith: My Lords, the noble Lord, Lord Strasburger, is participating remotely.

Lord Strasburger: My Lords, I draw the attention of the House to my role as chair of Big Brother Watch and beg leave to ask the Question standing in my name on the Order Paper.

Viscount Camrose: Preserving individuals’ rights to freedom of expression underpins all the Government’s work on tackling disinformation. This right is upheld by the Online Safety Act, which protects freedom of expression by addressing only the most egregious forms of disinformation, ensuring that people can engage in free debate and discussion online. Under the Act, when putting in place safety measures to fulfil their duties, companies are also required to consider and implement safeguards for freedom of expression.

Lord Strasburger: I thank the Minister for his reply. Last year, Big Brother Watch exposed worrying overreach by the Counter Disinformation Unit in its attempts to prevent legitimate criticism of the Government by MPs, journalists and academics. Following the Government’s apology, could the Minister tell the House what, if anything, has changed, apart from the unit’s name? Could he please explain why the Government refuse to allow the Intelligence and Security Committee to oversee the work of what is now called the National Security Online Information Team?

Viscount Camrose: First, the Counter Disinformation Unit has indeed changed its name to the National Security Online Information Team, to better reflect its role. I am not aware of the apology to which the noble Lord refers, but I will look into it. I have not heard of it. The NSOIT, as it is now called, does not target individuals, particularly not politicians or journalists. It does not even go after individual pieces of content but looks for trends across all items of content online. I will look into this case for an apology, but I am surprised by it because I am not aware of it.

Baroness Chakrabarti: My Lords, the Question of the noble Lord, Lord Strasburger, requires a little further interrogation, because that report by Big Brother Watch suggested that during the pandemic, politicians, journalists and civil society campaigners from across the political spectrum were personally targeted for critiquing the Government’s handling of the pandemic. Given that report and these legitimate concerns, it would be very kind if the Minister and his colleagues would look into this further and write to the noble Lord, Lord Strasburger, and, indeed, to anyone else affected.

Viscount Camrose: Yes, I am very happy to write any such letter. I confirm now in front of the House that the function of the NSOIT, formerly the Counter Disinformation Unit, is to analyse attempts to artificially manipulate the information environment for purposes of national security. It is not its function—and never has been its function, regardless of its name—to go after individuals, whether they are politicians, journalists, or anybody else. It looks for at-scale attempts to manipulate the information environment.

Lord Clement-Jones: My Lords, it is clear we need to be assured that the rather concerning activities reported about the CDU treating political criticism as disinformation are no longer practised by NSOIT. Can the Minister explain where we can find a copy of NSOIT’s policies? Can he confirm whether it has a policy to prohibit it from flagging lawful domestic speech for terms of service violations to social media companies?

Viscount Camrose: Information on NSOIT is posted on GOV.UK, and I am happy to share that location with the noble Lord. I can confirm not only that it is not the role of NSOIT or the CDU to go after any individuals, regardless of their political belief, but that it never has been. NSOIT looks for large-scale attempts to pollute the information environment, generally as a result of threats from foreign states. I am happy to say in front of the House that the idea that its purpose is also to go after, in some ways, those who disagree politically with the Government is categorically false.

Lord Bassam of Brighton: My Lords, the issue is much more complex than that. I am concerned that the unit to which the Minister referred seems to be concerned only about security issues now. In December, I asked the Minister about the rise of political deepfakes, which often originate from overseas and have the potential to undermine trust in political leaders and our wider democratic processes. With the Data Protection and Digital Information Bill currently before the House already containing measures on what the Government call “democratic engagement”, can I tempt the Minister to bring forward new anti-deepfake provisions to help preserve the integrity of our upcoming general election—and not just our election in a year of big elections?

Viscount Camrose: Indeed. It is worth reminding the House that close to 2 billion people will go to the polls over this calendar year. A great many of those elections in which they participate will come under attack from malign foreign influences. Therefore, we  have implemented the Defending Democracy Taskforce, chaired by the Security Minister, which set up a new unit last year specifically dedicated to safeguarding our coming election, whenever it may be. It continues to engage with various committees of Parliament and with the Electoral Commission. We will look carefully at any proposals on deepfake provisions in the DPDI Bill. Deepfakes are already illegal today if they violate either the foreign interference offence or the false communications offence.

Lord Fox: My Lords, my noble friend Lord Strasburger asked about the parliamentary scrutiny of the unit. Does the Minister understand that, if there were to be proper scrutiny of the unit, some of the words that he uses to try to placate your Lordships’ House would have deeper resonance? Can he tell us why the ISC is not scrutinising the unit?

Viscount Camrose: NSOIT is indeed scrutinised by Ministers; it sits within DSIT and then Ministers, as we see, come before this House to explain matters. As a national security team, I dare say that we would have some concerns about a standing report to Parliament about its activities, but I can continue to reassure the House on its role.

Lord Kirkhope of Harrogate: My Lords, can my noble friend the Minister explain how this very interesting unit is comprised? Who are the members of the unit and from where do they come?

Viscount Camrose: The unit comprises civil servants who sit within DSIT, and it occasionally makes use of external consulting services. It adjusts its size and membership from within the DSIT team according to the nature of the threat at any given moment.

Baroness Fox of Buckley: My Lords, on transparency: we would not know about the Counter Disinformation Unit if it was not for Big Brother Watch, which we owe great thanks for its service on that. The Minister seems to know what disinformation is. Can the Government tell us how they identify what is to be labelled as disinformation? Who checks the fact checkers? For example, BBC Verify seems keen to expose everybody else’s disinformation but seems blind to its own egregious examples of inaccurate information.

Viscount Camrose: Well, the Government are clear, as is NSOIT, that disinformation refers to the deliberate attempt to mislead by placing falsehoods into the information environment. As part of the Civil Service, NSOIT would have robust internal measures to verify and check its own work, and indeed it reports regularly across government and to Ministers.

Lord Kamall: My Lords, can my noble friend the Minister explain what guidance is given to the unit to distinguish between disinformation and difference of opinion?

Viscount Camrose: Disinformation is a deliberate falsehood. A difference of opinion is generally something of democratic importance or of journalistic or pluralistic  importance, which it is very important to protect and which the Online Safety Act took very considerable measures to safeguard over its passage.

Baroness Jones of Moulsecoomb: My Lords, does this unit check on government disinformation such as the Rwanda Bill?

Viscount Camrose: I do not believe that this unit has been working on the Rwanda Bill.

Lord Pannick: My Lords, if this unit consists of civil servants and external advisers, why is it impermissible for its work to be supervised by a parliamentary committee composed of privy counsellors?

Viscount Camrose: It was set up as an internal part of DSIT. It reports to Ministers and Ministers provide the oversight. I take the point, but it is a national security institution and, as such, the Government have a strong preference for not allowing it openly to share national security information for fear of benefiting those who wish us harm.

Recycled Plastics
 - Question

Baroness Bennett of Manor Castle: To ask His Majesty’s Government what assessment they have made of reports that a global oversupply of petrochemicals has led to recycled plastics failing to compete with new, and whether they plan to take any action in response.

Lord Benyon: My Lords, we are aware of the oversupply of petrochemicals in the global market, but this is a matter for industry to lead on. It is estimated that businesses which are members of the UK Plastics Pact have, on average, increased the recycling content of their packaging from 8.5% in 2018 to 24.1% in 2023. The Government will continue to readdress the balance through measures such as the coalition and packaging reforms and the plastic packaging tax.

Baroness Bennett of Manor Castle: I thank the Minister for his Answer. However, there was, for example, three times as much ethylene produced last year as there was demand for it. As with fossil fuels used for energy, is it not time to look seriously on a global scale at restrictions on production, not just working on the demand side, particularly given that we are all bearing the externalised costs imposed environmentally and financially in terms of waste disposal and the companies are taking away profits for unnecessary products?

Lord Benyon: The noble Baroness raises a very good point. Domestically, we are seeking to increase the supply of recycled plastics and reduce the demand, through regulation and tax, for virgin plastics, but we recognise that whatever we do domestically will not help to solve this global problem. That is why we are a  founding member of the High Ambition Coalition to End Plastic Pollution. At the United Nations Environment Assembly in March, we drove through, with Rwanda and Peru, a commitment to see an end to plastic pollution by 2042.

Baroness Meacher: My Lords, the Birmingham expert commission on plastics and the environment, which I chaired, recommended the introduction of a sliding-scale tax on plastic packaging. Can the Minister assure the House that the Government will introduce such a sliding-scale tax, which would greatly benefit the environment?

Lord Benyon: We are looking at all sorts of reforms to our measures. The plastic packaging tax increases with inflation and has gone up to £217 per tonne this year. We are continuing to look at extended producer responsibility reforms and to see whether the work that the noble Baroness has talked about has an application in terms of how we deliver these regulations.

Baroness Bakewell of Hardington Mandeville: My Lords, we need to use less plastic and actually recycle what we do use. There is enough floating around the planet already; there is no good reason to produce more. Will the Minister tell us whether the Government are going to introduce the deposit return scheme in this Parliament, and when they expect the global plastics treaty to be agreed?

Lord Benyon: On the deposit return scheme, we have a date for implementation of October 2025. Our social research found that 74% of respondents supported it and 83% of our consultation responses supported its implementation. We think that there are 3,000 to 4,000 jobs if we get this right. On the international agreement, as I said, the UK is a founder member of the high ambition coalition, we are driving it forward and we need other countries to do it as well. Some 90% of the pollution in our oceans that comes from rivers comes from just 10 rivers—eight of them in Asia and two in Africa. That is an indication of the global problem that we are facing.

Lord St John of Bletso: My Lords, there are growing reports of the detrimental impact of microplastics in the food and water supplies, which can indirectly impact on our health. What are the Government doing to further research this problem and educate the public on this risk, and what measures are being taken to mitigate it?

Lord Benyon: There are human health issues related to plastics pollution and huge environmental damage done. At a recent Ospar convention, I saw a fulmar having its guts opened up for us to look at, and you can see the plastics in its guts system and its gizzard. It just gives you an idea of how many thousands—millions, even—of birds around the world are dying because of plastics pollution. We need to have a greater understanding of the impact on human health, and that is why our One Health agenda is really important in this field.

Baroness Hayman of Ullock: My Lords, the Minister talked about the deposit return scheme, and said that it would be coming in in October 2025.  Why has it taken so long? People are incredibly frustrated about this; they want it introduced as quickly as possible. Is the delay partly because the Government are reconsidering its scope?

Lord Benyon: No, we want this to be a United Kingdom scheme. The noble Baroness will be aware of complications in Scotland, and we want to make sure that we are introducing this in conjunction, so that we do not have booze cruises from Scotland to England to buy drinks that will not fall within that scheme. We now think that we can work with this. In the context of the whole piece, with our plastics packaging tax, and recycling increasing dramatically over the last decade, we are now requiring households right across the country, uniform across the local authorities, to recycle all six waste streams by 2027. With the bag charge, which has seen a 98% reduction in the use of those, and the introduction of the banning of single-use plastic straws and a whole range of other single-use plastics, I think even the noble Baroness would admit that we are doing our best.

Baroness Bloomfield of Hinton Waldrist: My Lords, my noble friend the Minister will be aware that Wales led the way in introducing a charge for single-use plastic bags. It was so successful that it was followed in short order by Northern Ireland, Scotland and then England. However, in respect of the ban on single-use plastics, on which, again, Wales is trying to lead the way, I am not quite so sure of the evidence. Will the Minister say what his opinion is of what the effect of banning single-use plastics might be?

Lord Benyon: Our restrictions on straws, stirrers and cotton buds have had a big impact. These items used to appear on the top-10 littered items lists but no longer do so. According to estimates in our impact assessment, England used 1.1 billion single-use plates and 4.25 billion items of single-use cutlery per year, most of which were plastic but only 10% were recycled, so banning these items will have a significant impact on reducing plastic waste.

Baroness Bennett of Manor Castle: My Lords, the Minister referred to strong public support for recycled plastics rather than virgin plastics, yet it is clear that the market mechanisms are simply not delivering the products that people can buy. Individual action will not work here. Do we not need to go much further and faster to ensure that we get to the circular economy that the Government stand for, and, indeed, the position where the polluter pays, which is the Government’s position?

Lord Benyon: Absolutely. The Government’s 25-year environment plan sets out our ambition to eliminate all avoidable plastic waste by 2042. The resources and waste strategy, which was published in 2018, sets out how we are going to achieve that ambition, mainly by creating precisely what the noble Baroness said—a circular economy. We are not the single repository of good ideas here so, if the noble Baroness has a suggestion that works with business and the end-user, particularly households, we would be glad to hear it.

Lord Berkeley: My Lords, in response to the question from my noble friend on the Front Bench, the Minister said something about Scotland being different and that being a problem. Could he explain to noble Lords who are ignorant about these things what the problem is and what the solution might be?

Lord Benyon: I do not want to rake over the Scottish National Party’s grief, but it sought to have a different scheme from the rest of the United Kingdom—for whatever reason we can only conjecture. It is important to have one system across the whole United Kingdom. Many businesses and individuals were fiercely opposed to what was proposed to be introduced in Scotland, and we are glad that the Scottish Government pulled it. We can now move forward with one scheme that is effective across the United Kingdom and can really deliver. Those of us who can remember how deposit schemes worked in the past can see how it can work in the future. What was created in Scotland through certain applications of that scheme would have proved disastrous. We want to make sure that this happens properly across these islands.

Lord Dobbs: My Lords, I understand that some local authorities require seven different recycling bins, which threatens chaos. Does the Minister believe that the answer to our recycling challenge is to increase the number of recycling bins for us all or to make central recycling facilities work much more effectively?

Lord Benyon: The noble Lord will know that different local authorities have different ways of doing this. There are technologies now that can separate plastics and other recyclable waste, but one undoubtedly needs a separate receptacle for food and various other wastes. I do not see how our proposal would lead to seven different recycling bins; it would just not work in those circumstances.

Ofsted: Pupil Absence Rates
 - Question

Lord Watson of Invergowrie: To ask His Majesty’s Government what plans they have to empower Ofsted to review pupil absence rates as part of their school inspections.

Baroness Barran: My Lords, improving attendance is a top priority for this Government, because it is vital for children’s learning, well-being and long-term development. As part of its existing framework, Ofsted expects schools to do all they reasonably can to achieve the highest possible attendance. Inspectors will check that schools have a clear understanding of the causes of absence in their school and that the necessary strategies are in place to improve attendance.

Lord Watson of Invergowrie: I thank the Minister for that Answer. She knows that a child is deemed to be persistently absent if they have missed 10% or more of lessons. Across the two school terms prior to the current one, around one in five children  were persistently absent from primary and secondary schools, which is more than double the figure five years ago. So there is an existential crisis and a safeguarding issue, because the link between absenteeism—children missing from school—and children taken into home education is strong. Ofsted and the Children’s Commissioner want to see a register of children not in schools, which the Government have said they support, so why was that measure not included in the King’s Speech, which was not exactly overloaded with legislation?

Baroness Barran: The Government remain committed to legislating to set up a register of children not in school. The noble Lord may be aware that the honourable Member for Meon Valley has introduced a Private Member’s Bill, and we will be working hard with her as she progresses that.

Lord Baker of Dorking: My Lords, when children of 14 decide to leave their school and go to a university technical college, their absence rate falls dramatically compared to that at their previous school. They like going to a UTC because they can work in workshops as well as classrooms, they can learn by their hands as well as their brains, and they visit companies looking for jobs. I assure your Lordships that, unless that sort of education is deeply embedded, the absence rates of disadvantaged students will not fall, because they are told all the time by the Department for Education that they must study eight academic subjects. We need a curriculum fitted to this century.

Baroness Barran: My noble friend needs to consider also the patterns of attendance before the pandemic. The curriculum was the same before the pandemic as post-pandemic, but attendance rates are very different. Linking absence entirely to the curriculum may require further consideration.

Lord Laming: My Lords, the Minister will recall that in the Children’s Commissioner’s latest report, on absenteeism, she says:
“For some, the pandemic has led to disengagement. Schools and families have said that they feel like the social contract between parents and schools has been broken”.
Could we be assured that an Ofsted report will consider also the positive and creative engagement of parents in school life?

Baroness Barran: The noble Lord makes a good point. We need not wait just for Ofsted in order to look at the positive engagement of parents. Many of the schools I visit are focused substantially on that and on making sure that parents get positive feedback about their children in school—not just a call when their child is not there.

Lord Addington: My Lords, what are the Government doing about people who attend unregistered —effectively illegal—schools, often of a very dubious religious nature? What are they doing to eradicate this and to make sure that children receive an education that enables them to stand on their own two feet outside closed communities?

Baroness Barran: The noble Lord will be aware that Ofsted has been involved in a number of prosecutions of illegal schools. We remain very concerned about those—indeed, the Private Member’s Bill to which I referred earlier will go some way to addressing this issue.

Bishop of Lincoln: My Lords, I express gratitude to the Minister for the way in which the data has been produced; I understand that more is to come, and that will be examined in great detail. As an unrepentant pedant, though, I am as interested in the adverbs as the nouns—in how the data is to be applied. How do we get more children across the line in terms of the culture of school? Some years ago, the Children’s Society’s Young Commissioners looked deeply into child poverty in school and how children are identified as those, for instance, receiving free school meals or who are not able to purchase the very expensive school uniforms from the agreed seller. How is school culture being encouraged by government further to change in order to get children across the line? How, indeed, do we expect Ofsted to become the “office of encouragement”?

Baroness Barran: As the right reverend Prelate knows, Ofsted is about to start its Big Listen exercise, so maybe that is one of the questions that could be asked. He asks an important question about how the data will be used. There is more we can do within the department on analysing and breaking down the data into more actionable insight for schools, and we will start engaging with trusts and local authorities on that very shortly. We need to be careful to make sure that children who really have major barriers to coming to school and whose attendance is very poor are not conflated with those who are in school nine or nine and a half days out of 10. It is about how we get those ones, too, over the line.

Baroness Wilcox of Newport: We have a crisis of attendance in our schools. Research from the Centre for Social Justice reveals that more than one in four parents think that school is not essential every day. It is essential. What can the Government do to repair the relationship between schools and families, which has deteriorated greatly in recent years?

Baroness Barran: Again, we have to be very careful not to make sweeping generalisations. We are seeing lots of green shoots in terms of attendance and higher-level attendance, particularly in transition year groups such as year seven, when children go from primary to secondary school. There are important things we can build on, such as having open, honest, regular communication with parents, pointing out if a child has not been coming into school and trying to understand why. But more importantly, celebrating with a parent a child’s attendance or performance in school is to be encouraged.

Baroness Blackwood of North Oxford: My Lords, it is absolutely right to tackle school absence, but as we approach Rare Disease Day, I draw attention to the huge pressures faced by children and families with rare and undiagnosed conditions in trying to  remain in education. The lack of specialist resources and awareness act as barriers. Understandably, in these complex situations it is not always possible to avoid absence. Will the Minister meet with charities and family representatives to see how we can design these policies without increasing the pressures on those families?

Baroness Barran: I would be delighted to meet with the charities and families to which my noble friend refers. She makes an important point, and it goes back to the point made earlier by the noble Baroness—that parents need to feel that the response they are getting from their school is about their child. To every parent, their child is very special.

Baroness Bull: My Lords, we know that children with profound and multiple learning difficulties, physical disabilities and social, emotional and mental health special educational primary needs have the highest rates of school absence. In spring 2023, 384,202 children with some form of identified special educational need were persistently absent. Given what we know about the link between persistent absenteeism and life chances, does the Minister agree that this risks widening the gap between the more advantaged and the less advantaged in our society? What are the Government doing to support children with special educational needs and disabilities to succeed in school?

Baroness Barran: The Government are doing a great deal, starting with their investment in a dramatic increase in the number of specialist places for children with the kinds of special needs and disabilities the noble Baroness refers to, through our attendance hubs programme in particular. I met a group of chief executives of specialist multi-academy trusts which are working with children with special educational needs and those in alternative provision. We are seeking to identify best practice and making sure it is a shared peer to peer.

AI: “Nudify” Apps
 - Question

Baroness Owen of Alderley Edge: To ask His Majesty’s Government whether they plan to prohibit “nudify” apps which create intimate images of other people using artificial intelligence without their consent.

Viscount Camrose: My Lords, the Online Safety Act introduced new offences which criminalised the sharing of, or threatening to share, intimate images, including deepfakes, without consent. Where individuals create these images using any kind of technology and share or threaten to share them online, they may be committing an offence. The Act will additionally give online platforms new duties to tackle this content by removing it, including where it has been created via AI apps.

Baroness Owen of Alderley Edge: I thank my noble friend the Minister for his Answer. There has been a huge increase in the use of nudify apps and the creation of deepfake porn since the Law Commission stated that it was less sure that the level of harm caused by the making of these images and videos was serious enough to criminalise. Does my noble friend agree that the making of these images and videos without a person’s consent does in fact cause serious harm, regardless of whether a person is aware of it, and that, if allowed to continue, represents a very real threat to all women?

Viscount Camrose: I start by acknowledging that the creation of intimate image deepfakes using AI or other means is abusive and deeply distressing to anyone concerned and very disturbing to all of us. The Law Commission consulted widely on this, looking at the process of taking, making, possessing and sharing deepfakes, and its conclusion was that the focus of legislative effort ought to be on sharing, which it now is. That said, this is a fast-moving space. The capabilities of these tools are growing rapidly and, sadly, the number of users is growing rapidly, so we will continue to monitor that.

Lord Browne of Ladyton: My Lords, the applications referred to in the excellent Question put by the noble Baroness, Lady Owen, represent a dangerous and overwhelmingly misogynistic trend of non-consensual deepfake pornography. They are able to be developed and distributed only because of advances in AI, and sit alongside the use of deepfakes for political disinformation and fraud. Polling suggests public ambivalence towards AI but near unanimity around deepfakes, with 80% of people supporting a ban, according to a recent YouGov survey. Cloud computing and services hosting AI models are essential for deepfake creation, and the fact that all major cloud suppliers have a presence in the UK empowers our Government uniquely to enforce best practice. Does the Minister agree that our regulatory system should not merely ban deepfakes but go further, imposing upon the developers a duty to show how and in what way they are applying existing techniques and restrictions that could prevent their creation in the first place?

Viscount Camrose: An outright ban on the creation of any deepfake material presents a number of challenges, but obviously I applaud the sentiment behind the question. With respect particularly to deepfakes involved in intimate image abuse, we are clearly putting in place the offence of sharing, whether as part of the new intimate image abuse offences in the Online Safety Act that commenced two weeks ago, as part of the Criminal Justice Bill shortly to come before your Lordships’ House, or indeed under the existing child sexual exploitation and abuse offences. There are severe penalties for the sharing of intimate image abuse deepfakes, but it is a fast-moving space and we have to continue to monitor it.

Lord Clement-Jones: My Lords, it is quite clear that simply banning the sharing of these deepfakes is not sufficient. This is an issue that concerns us all, whether in relation to sexual images, fraud or misinformation. Can the Government not overcome  their reluctance to regulate AI? What evidence would persuade them to go further and make sure that the creators of these deepfakes are liable?

Viscount Camrose: As regards the overall regulation of AI, I hope that noble Lords have had a chance to peruse the Government’s response to the AI White Paper consultation. It makes the argument very clearly that there will come a time when it is right to legislate to create binding rules on all creators of AI. When that time comes, due to the policies that we are putting in place, we will have an agreed risk register informing us. We will have set up monitoring and evaluation techniques, again gathering evidence. We will have working relationships with the AI labs, defined procedures for the creation of AI, and regulators trained to regulate AI within their own sectors. That means that, when we do regulate AI, it will be done in a targeted and sophisticated way, on the basis of evidence.

Lord Bassam of Brighton: My Lords, the Government have been far too complacent on this issue. During the passage of the then Online Safety Bill, we warned a number of times that, given that this is a fast-moving technology, as the Minister says, the Government needed to get ahead of the game. Given the proliferation of these ghastly images and the appalling impact this has on people’s lives, does the Minister now agree that neither the emergence of these apps nor their misuse is surprising? If that is the case, why did the Government not broaden the scope of their amendments when they had the opportunity to do so? Will the Minister now look for ways in which we can plug the gaps that are clearly emerging?

Viscount Camrose: As the noble Lord said, it is a fast-moving space, and that requires an adaptive, agile response in legislating for it. That is the approach that we are taking. As to the argument that we can now see that it is not working, I am not sure that that is the case. The intimate image abuse offences commenced on 31 January—two weeks ago. I am pleased to see that, yesterday, we had our first cyberflashing conviction under those provisions. Using an evidence base, looking forward, we will have to consider carefully what is working before we go ahead and implement further bans.

Baroness Foster of Aghadrumsee: My Lords, during the last Assembly election in Northern Ireland, two female candidates from either side of the community in Northern Ireland were targeted with deepfake porn, which was solely designed to damage their chances in that election. We know the number of people who will be going to the polls in the next year. Surely the Minister and the Government need to work with the Electoral Commission to raise this issue, because it is a very important issue in democracy for female candidates.

Viscount Camrose: I absolutely agree, and the instance that the noble Baroness described is deplorable. I am pleased to say two things very briefly. First, the sharing she describes now carries, as a base offence, up to six months in prison; if, as in the case the noble  Baroness put forward, the sharing is designed for the purposes of malice or gaining sexual gratification, that sentence goes up to two years. That regime is now live. On elections, we have set up the Defending Democracy Taskforce, with a new unit implemented last year specifically dedicated to safeguarding the election against such threats.

Baroness Chakrabarti: My Lords, the noble Baroness, Lady Owen, asked a Question that was forensic, specific, nimble and agile—all adjectives that the Minister keeps using: “Why not ban these nudify apps?”. Why not ban the tools of the wicked trade, rather than waiting for individuals to misuse them? What is the positive use of this? Is it that big tech is now so deep in our politics that we do not dare regulate this technology to make sure that it is not used for ill?

Viscount Camrose: The reason the making is not banned is that the sharing is banned, and the reason we did that is that Law Commission—as set out very clearly in its document—made the argument that this was the most appropriate way to have a coherent and effective body of law preventing this deplorable misuse of technologies.

Archbishop of York: My Lords, it would be very helpful if the Minister could explain. If I heard him correctly, he said that sharing has a six month ban but for malicious sharing it could be up to two years. Could he explain what non-malicious use would be?

Viscount Camrose: There is a base offence in the law of sharing intimate images without consent or the reasonable belief of consent. That can extend to two years if the intent is to cause alarm, distress or humiliation, or if the purpose is to gain sexual gratification. Crucially, there is an offence of threatening to share these materials which also carries a two-year penalty.

Developing World: Debt Reduction
 - Question

Lord Collins of Highbury: To ask the Secretary of State for Foreign, Commonwealth and Development Affairs what recent discussions he has had with international counterparts on a strategy to reduce debt in the developing world.

Lord Cameron of Chipping Norton: My Lords, we set out our commitments on developing countries’ debt in our international development White Paper. The Treasury and FCDO regularly engage with international partners to address rising debt vulnerabilities in developing countries. The UK also co-ordinates with other official creditors to provide debt restructurings where needed, both at the Paris Club and via the G20 common framework.

Lord Collins of Highbury: My Lords, after Covid, we had the common framework from the international community. Sadly, only four countries have applied. Certainly, the situation is getting worse, and not better, in terms of debt. Does the noble Lord accept that a huge step forward would be to agree with global partners on a workable definition of debt sustainability to provide countries in debt distress a more level playing field?

Lord Cameron of Chipping Norton: I thank the noble Lord for his question. We are happy to accept the IMF definition of debt sustainability and to use it as a baseline. We are happy to look at other ideas but, given the IMF’s role, that makes sense. I completely accept what lies behind the noble Lord’s question: 58% of low-income countries are now either in debt distress or at risk of it, so he raises an important point. However, I think the definition is done by the IMF.

Baroness Northover: My Lords, climate change is already hitting the poorest the worst and the most, often in indebted countries. Although it is welcome that a loss and damage fund was agreed at the last COP, does the Foreign Secretary agree that what has been pledged so far—including, I am afraid, by the UK—is totally inadequate? Does he further agree that it is not only right to scale this up but in our interest, as we seek to reduce the conflict and migration that are likely to be caused by climate change, which will be much more costly?

Lord Cameron of Chipping Norton: We have doubled our commitments to climate finance. One of the successes of COP was that the climate finance funds are now considerable, running into many billions. I identify the problem more as small countries, particularly island and developing states, not being able to access that money because they do not have the expertise, the lawyers, the bankers, the officials and so on. That is a problem that my officials are trying to solve. In the area of debt itself, the climate resilience debt clauses that we are now writing into debt, which give states a holiday from debt repayments if they suffer a climate disaster or some other unforeseen event, can be a big part of the future too.

Lord Alton of Liverpool: Will the Foreign Secretary confirm that, through China’s belt and road programme, developing nations are estimated to be indebted to China to the tune of more than $1 trillion? Does he share the view of Parliament’s Intelligence and Security Committee that it would be naive not to see how such punitive debt in countries such as Sri Lanka—which is $47 billion dollars in debt, half to China—can be used by China to buy support in the UN, to expand its military presence and for leverage in domestic and international institutions? How are we countering this?

Lord Cameron of Chipping Norton: One of the most important ways to counter it is by offering an alternative, so that when countries are developing there are other offers on the table. That is why the expansion of British International Investment—what used to be the Commonwealth Development Corporation—is  so important. We are also countering it through the expansion of the multilateral development banks, and in our White Paper we demonstrate how we can expand their balance sheets and get them to lend more. However, the noble Lord makes a very good point: if we look back 10, 15 or 20 years, when we were running debt forgiveness programmes to help highly indebted countries, we see that it was mostly Paris Club countries such as France, Germany, Britain and America that were responsible for the debt, so if we wanted to write it off then we could. Now that so much of the debt owed is to China, which does not believe in debt write-offs, we have to find other ways of delivering restructurings to help those countries which have got into trouble.

Lord Hamilton of Epsom: My Lords, if we write off the debt of these developing countries, what is to stop them running up more debt in future?

Lord Cameron of Chipping Norton: As ever, my noble friend makes a very good point. If we look back at the successful programmes that there were, such as the heavily indebted poor countries initiative, we see that they helped, but many of those countries have gone back into debt—although the situation is not as bad as it was before: the debt-to-GDP ratios in very indebted countries is some 60%, whereas it had got to 100%. One of the best things we can do for those countries is to help them to have better fiscal systems so they can raise their own taxes. I know that noble Lords like a Rwanda update: we have been working with that country since the 1990s and helped it to increase its tax revenue tenfold, and its ratio of tax to GDP has doubled from 8% to 16%, the highest in the region. That is a better thing to do in many instances than lending those countries money.

Lord Sikka: My Lords, a major reason for the indebtedness of developing countries is that too many multinational corporations operating in them dodge taxes by shifting profits to low-tax or no-tax jurisdictions. The IMF estimates that around $213 billion of taxes are lost each year. An earlier Prime Minister introduced the Finance Act 2016 and promised that companies would publish a public form of country-by-country reporting so that there would be some visibility of the profits shifted by UK companies, but later Governments never honoured that commitment. Could the Foreign Secretary have a word with the current leaders of the Government and try to revive that commitment?

Lord Cameron of Chipping Norton: I think that the noble Lord refers to what was agreed at the G8 in Northern Ireland in 2013, where a whole series of steps forward were made to make sure that companies were not doing what is known as base erosion and profit shifting and not paying their taxes in countries where they should. To be fair to the former Prime Minister, who is now the Foreign Secretary, we did make some progress, and I think the OECD would say that it has made a lot of progress, but I will certainly check up on the noble Lord’s point.

Lord Naseby: On the question of Sri Lanka, will my noble friend recognise the way in which Her Majesty’s Government, to whom I give particular  thanks, through the IMF, were very firm to the Government of Sri Lanka about what they should do? The Sri Lankan Government responded, which means that the people of Sri Lanka can now move forward. I believe that that is as good a case history as we will find in recent times.

Lord Cameron of Chipping Norton: My noble friend is absolutely right that Sri Lanka is in debt distress; it has been working through a programme with the IMF. We wish the new Government in Sri Lanka well as they go through this and try to make sure that they can build a brighter future for that country.

Lord Collins of Highbury: My Lords, in introducing the White Paper, Andrew Mitchell said that it cannot be right for individuals in this country to borrow money at 4% or 5%, while for developing countries that are addressing such huge issues, the cost of borrowing is so high. What discussions have the noble Lord’s officials had regarding private creditors holding low-income country debt? Does he agree that a fairer system is needed between private creditors and countries in debt distress?

Lord Cameron of Chipping Norton: First, I congratulate the noble Lord on joining a club of which I am a member, in being personally sanctioned by Vladimir Putin. It is a badge I wear with honour, and I am sure he will too.

Lord Collins of Highbury: That is news to me.

Lord Cameron of Chipping Norton: The noble Lord is in very good company—I follow these things very closely.
The noble Lord is absolutely right about the importance of making sure that we do not have so many private sector holdbacks that hold up the vital debt restructuring of countries that get into trouble. We are trying to use things such as collective action clauses that work on bond issues—so they cannot hold out against repayment —as well as the majority voting provisions in new debt issuances so that private sector lenders are not stopping a country getting the debt restructuring they need.

Lord Purvis of Tweed: I agree with the Foreign Secretary about increasing the capacity of Governments’ treasuries and their finance ministries to collect their own revenues, as well as trade facilitation, so that those trade ministries have greater capacity to trade out of poverty. I declare an interest as the co-chair of the All-Party Group on Trade out of Poverty. Does the Foreign Secretary believe that it was a mistake by some of his predecessors to cut UK support for exactly those processes? Since he is now passionate about this, and I agree with him, will he restore that funding?

Lord Cameron of Chipping Norton: One of the great things that was done while I was out of government is one of the Government’s best-kept secrets, the developing countries trade system, which is more generous to the poorest countries in the world than the EU or the US. It is one of the most generous systems in the world, so in terms of helping countries to trade out of poverty, this Government have an excellent record.

Lord Bellingham: Further to the question from the noble Lord, Lord Purvis of Tweed, surely we now need to double down on opportunities to sign bilateral trade treaties with different countries, in sub-Saharan Africa in particular. If they can increase their wealth through trade, obviously they will be able to pay off their debt in the future. Can my noble friend say something about those bilateral trade treaties that we are now able to sign post leaving the EU?

Lord Cameron of Chipping Norton: My noble friend asks an important question about how we prioritise the trade deals that we are trying to do. For the poorest countries, the DCTS—the Developing Countries Trading Scheme—is there. Our priorities in terms of trade deals are with India and the Gulf Cooperation Council, which are very complex and need a lot of work. I think that is the right way round.

Children in Gaza
 - Question

Baroness Bennett of Manor Castle: To ask the Secretary of State for Foreign, Commonwealth and Development Affairs what his Department is doing to ensure the lives and security of the children of Gaza.

Lord Cameron of Chipping Norton: My Lords, the best way to address the humanitarian situation is by ending the fighting as soon as possible. That is why I have repeatedly said that an immediate pause in fighting is necessary. UK aid is saving children’s lives. We are doing everything we can to get more aid into Gaza and have trebled our aid commitment to the Occupied Palestinian Territories. This includes targeted support for children through our £5.75 million contribution to UNICEF. Children are also benefiting from life-saving food, shelter and health support that we are providing through partnerships with other UN agencies, NGOs and the Red Crescent societies.

Baroness Bennett of Manor Castle: I thank the noble Lord, but surely a pause in fighting is not enough. We need a permanent ceasefire now. Specifically, I am sure he is aware of the awful fate of six year-old Hind Rajab, calling for help in the midst of the bodies of her dead relatives, who appears to have died with two would-be rescuers from the Red Crescent. Have the Government demanded answers from the Israeli Government—or will they—about what happened to Hind, her family and the rescuers? Are the Government challenging the Israeli Government on the risks to hundreds of thousands of children in Rafah who are now in the path of the Israeli offensive? Surely it is time to stop all arms shipments to Israel, as a Dutch court has demanded that the Netherlands does, and implement targeted sanctions against members of the Israeli leadership, particularly those calling for new settlements in Gaza and on the West Bank.

Lord Cameron of Chipping Norton: The noble Baroness asks a number of questions. The case she raises is completely tragic, and what is happening in Gaza is tragic. We want an end to this suffering and killing. Let me make this point: we want to turn the pause we are calling for into a ceasefire, by making sure the conditions are right for getting a stop in the fighting to mean a permanent ceasefire. The way to do that is by fulfilling a number of conditions. In our view, you have to get the Hamas leaders out of Gaza—otherwise, any ceasefire will not last because the problem will still be there. You have to dismantle the operation of terrorist attacks. You have to have a new Palestinian Authority Government in place. You have to give the Palestinian people a political horizon to a better future and a two-state solution. Crucially, you have to release all the hostages—and do that very quickly.
The noble Baroness asks whether we challenge the Israeli Government over individual episodes. Yes, we absolutely do. I have done that personally with them, for instance, over a building that was bombed that had UK medics and other charities in it. We will continue to do that as part of the very important process that we go through to judge whether they are in compliance with international humanitarian law.

Lord Robathan: Is my noble friend aware of any moves by Hamas to protect the children of Gaza, for instance by releasing all the hostages, as he just mentioned, or stopping attacks on Israel and the leaders fleeing to the Gulf? Is he aware of any such moves? I agree with everything he said.

Lord Cameron of Chipping Norton: My noble friend makes a very good point. It is worth remembering that on 7 October, 29 children were killed by Hamas and 39 children were taken hostage and remain hostages today. It is right that we in this House keep asking what else Israel should do, but at the very same time we should also say what Hamas should do, which is to lay down its weapons and stop right now. It could stop this fight immediately.

Lord Turnberg: Is the noble Lord aware that the IDF has suggested that it is in no rush to enter into Rafah and will delay, possibly until after Ramadan? Meanwhile, the negotiations in Cairo can continue. That gives a chance for Hamas to release the hostages and for the conflict to stop.

Lord Cameron of Chipping Norton: That is absolutely right. I believe those discussions are under way, and it is a great pity that they did not reach that conclusion the last time they were under way. As I said, the best outcome we could seek is an immediate stop in the fighting. Let us hope that the stop is for as long as possible. I think that Israel was content to offer a month or six weeks as a pause. Then we need the momentum to turn that pause into a permanent ceasefire, without a return to the fighting. That should be our goal but, crucially, the pause is necessary to get the aid in and the hostages out.

Lord Purvis of Tweed: My Lords, the Foreign Secretary referred to UNICEF—

Lord Green of Deddington: My Lords—

Noble Lords: No!

Baroness Williams of Trafford: My Lords, there is plenty of time. We will hear from the noble Lord, Lord Purvis of Tweed, followed by the noble Lord, Lord Green.

Lord Purvis of Tweed: I am grateful to the Chief Whip. UNICEF has said today that 600,000 displaced children are in Rafah in Gaza. That is comparable to the entire under-12 population of Scotland being displaced to one postcode area. Does the Foreign Secretary agree that for any belligerent in a conflict to advise children and civilians to relocate, on the pretext of their safety, to an area where there is no shelter, water or medicine, and where there are no security guarantees, is a war crime?

Lord Cameron of Chipping Norton: I say to the noble Lord what I said yesterday in Scotland: many of the people in Rafah have already moved three, four or five times. It is not possible for them to move again. They cannot go north because they would be going back to homes that have been destroyed. They cannot go south because that would involve going into Egypt, which none of us wants to see and the Egyptians do not want. That is why it is so important that the Israelis stop and think before going ahead with any operations in Rafah.

Lord Green of Deddington: My Lords, does the Foreign Secretary agree that the huge number of civilian casualties in Gaza is deeply damaging to the reputation of Israel? Will he therefore take action to promote a change of strategy by the Israelis, as well as the other measures he has mentioned? Thousands of civilians are being killed; that has to stop.

Lord Cameron of Chipping Norton: Our view from the start has been that, while Israel has a right to defend itself and the attacks on 7 October were an appalling attack on Israel—it is worth remembering that it was the biggest pogrom since the Holocaust in terms of the loss of life of Jewish people; we should not forget that—and a tragedy that it had every right to respond to and try to prevent happening again, Israel must obey international humanitarian law. Let us be clear: not only does that involve what the IDF does in terms of the way it prosecutes this war but, as Israel is the occupying power in Gaza, it has to make sure that humanitarian aid—food, water and shelter—is available to people in Gaza. If Israel does not do that, it would be a breach of international humanitarian law as well.

Baroness Smith of Basildon: My Lords, the Foreign Secretary is right; the priority has to be securing an immediate, extended pause in fighting to ensure that we can get aid in and the remaining hostages out, and create room for a long-term, sustainable ceasefire, followed by an even longer-term resolution. There are currently almost 1.5 million displaced Palestinians in Rafah and it is the main route for humanitarian aid. Any further Israeli offensive in Rafah will be catastrophic. The situation is getting more urgent by the hour. I know the noble Lord has been working to establish a  contact group of regional and international leaders who would influence both sides. Is he able to offer any progress on that group or its ability currently to influence events?

Lord Cameron of Chipping Norton: At the Munich Security Conference on Friday, there will be a meeting of the key European countries that help to fund the Occupied Palestinian Territories and the key Arab and Gulf states working to help support a future Palestinian Authority. We very much hope that the Secretary of State of the United States will be there as well. This is not yet the formation of a contact group—a number of countries, particularly in the Arab world, are understandably nervous about meeting in advance of a proper ceasefire and a plan towards a cessation of hostilities—but I think we are on the way to getting this group, which the noble Baroness has long called for, up and running.
It is important, because there are lots of things that we need to start talking about now—what happens the day after a pause; a reconstituted Palestinian Authority; the question of how to offer a political horizon to people in the Palestinian territories; or indeed how to deal with Israel’s very real security concerns. If there is a pause and then a ceasefire, how do you make sure that the people responsible for 7 October cannot remain in Gaza and that the infrastructure of terror is taken down?

Baroness Helic: My Lords, alongside medical aid on the ground, one practical step the Government could take with an immediate impact would be to support medical care for children injured in Gaza on a temporary basis in the United Kingdom. I know that my noble friend and his department have been looking at this possibility. I would be grateful if he could update us on progress.

Lord Cameron of Chipping Norton: I thank my noble friend. It is called Project Pure Hope. We are looking very closely at whether it is possible to take the people in greatest need and bring them to British hospitals, as we have done in the past. The early work we have done shows that there is much we can do in the region, and we should probably do that first—for example, helping in the field hospitals that have been established, helping to send medical teams to referral hospitals in the region and supporting organisations such as Medical Aid for Palestinians. If that work leads to the identification of specific cases in which someone would be better off taking the long journey to Britain and going to Great Ormond Street or elsewhere, we certainly do not rule that out. We will continue to look at this.

AUKUS Security Partnership
 - Question

Lord Walney: To ask the Secretary of State for Foreign, Commonwealth and Development Affairs what progress His Majesty’s Government has made in implementing the AUKUS security partnership between the United Kingdom, Australia and the United States of America.

Lord Cameron of Chipping Norton: My Lords, AUKUS is an unprecedented partnership that is central to delivering security and prosperity for the UK and our partners in the Indo-Pacific and the Euro-Atlantic. We are making significant progress to deliver nuclear-powered submarines for the UK and Australia and are deepening co-operation on cutting-edge military technologies. We are breaking down barriers to defence trade and delivering benefits at home, securing £4 billion of contracts for British companies and generating thousands of jobs including in Derby and, I am pleased to say, Barrow-in-Furness.

Lord Walney: I thank the noble Lord for that Answer. As he rightly says, this is a landmark security partnership that requires a sustained commitment from multiple Governments over years, indeed decades. What is the Foreign Secretary doing to ensure that the focus of his department and of the whole Government can remain on this despite the ongoing crises in other areas? In particular, how can he prioritise the diplomatic work needed to ensure that the US can make progress on ITAR reform that can enable the technological and industrial co-operation necessary to deter our common adversary?

Lord Cameron of Chipping Norton: On how the Government co-ordinate this at a time where there are many distractions, I can say that the National Security Council is playing a role at bringing together all the ways that we can support Team Barrow to make sure that there is support for education, skills, housing, transport and all that will be needed to scale up this production effort as we go from 11,000 people employed building submarines to 17,000. On ITAR, which has been a troubling issue that British Governments have had to deal with for decades with American Governments, it is essential that AUKUS partners can trade freely between each other in defence equipment. I am pleased to say that we have made some real progress: I met Secretary Blinken in early December and on 22 December President Biden signed the US National Defense Authorization Act, which enables licence-free trade between the AUKUS countries, and we are working with the State Department on the technical details to make sure that really happens.

Lord Howell of Guildford: My Lords, are any other countries applying to join the AUKUS partnership? Are we thinking of applying to join the Quad—that is Australia, Japan, India and the United States? Will the UK attend the Perth conference on Indian Ocean security and defence, where all these issues tend to come together and will be discussed this summer?

Lord Cameron of Chipping Norton: On the last point, I think I am right in saying that one of my ministerial colleagues will attend the Perth conference because it is very important. As my noble friend will know, AUKUS has two pillars. Pillar 1 is about the nuclear-powered submarines of Britain, Australia and America, and I do not think there will be additional partners in that. However, pillar 2 looks at advanced military technology for the future, and there we are open to the idea of other countries—possibly Canada,  as people have mentioned, or Japan—which might want to join it because it is about defence equipment for the future. The point he makes about the Quad is very important. We would say that this is complementary to that activity.

Baroness Smith of Newnham: My Lords, when AUKUS was first announced, the suggestion, at least from the MoD, seemed to be that somehow the United Kingdom had just slipped into an agreement with Australia over the nuclear submarines but clearly, as the Secretary of State has pointed out, there is also the wider aspect of AUKUS. Do His Majesty’s Government have a strategic approach to this? Are we simply waiting to see whether other countries such as Canada wish to join or are we actually planning what we want to do? Similarly, we have a trilateral agreement with Japan and Italy over fighter jets. Are we just being ad hoc or is there a real strategy here for our security?

Lord Cameron of Chipping Norton: This is a deeply strategic approach. First, it fits into a tilt to the Indo-Pacific. Noble Lords can see we have signed the Hiroshima accord with Japan; we have a new status at ASEAN; we have very strong partnerships with India; and now we have AUKUS, which is a defence stature that puts us in with Australia and America in a very strategic way. In terms of the partners for pillar 2, we would welcome others to come but on each occasion we will have to ask, “What will they bring, is it the right thing, is it the right country and is it the right fit?” The strategic move of AUKUS is incredibly powerful.

Lord Ricketts: My Lords, speaking as another member of the club of those on Mr Putin’s blacklist, I welcome the AUKUS agreement but ask whether the Minister will accept that the handling of the French was pretty catastrophic? Does he accept that France is a major Indo-Pacific power and that now, when those bruises have perhaps healed somewhat, there is time to work with the French as well in the Indo-Pacific area, where they have a great deal to contribute?

Lord Cameron of Chipping Norton: The noble Lord makes a good point, which is that, ultimately, Britain and France should co-operate as closely as we can, because we are similar-sized powers with similar-sized militaries and global ambitions. That is what the Lancaster House agreement that he did so much to bring about was all about. What I would say to French partners now looking at this is that what AUKUS does for UK capacity is make sure that we replace the Astute submarines, which are incredibly high-tech and successful, with a new-generation AUKUS submarine—so the funding and the capacity are in place for that. We are assuring our future, and that is good for France because we can then talk with it about how it will secure the future of its submarine programme.

Lord Dobbs: My Lords, nobody has yet mentioned China, so allow me to do so. Will my noble friend agree that it is important that we continue to talk with China and find as many areas, and expand on as many areas, of agreement as possible? But, in all this discussion, is it not possible to focus too narrowly on the threat of China? Should we not do more to  embrace the democracies in Asia, such as Japan, India, Malaysia and South Korea? They are already more populous than China, are growing economically much faster than China and, in a few years’ time, will be far more economically powerful than China.

Lord Cameron of Chipping Norton: I very much agree with my noble friend. You can do both those things. It is important that we have a relationship with China. We have many disagreements, and it is an “epoch-defining challenge”, as the integrated review puts it, but, where we can find areas to progress discussions, we should. However, my noble friend is completely right to focus on the emerging democracies of the Far East, which is why I note not just AUKUS but the Hiroshima accord, the ASEAN relationship and the ministerial connections we have in Indonesia, Malaysia and Vietnam. I think I was the first ever serving Prime Minister to visit Vietnam, and I hope to go back soon.

Lord West of Spithead: My Lords, this security agreement is incredibly exciting. Without it, we would not be able to develop and get a sufficient number of nuclear submarines to replace the Astute class. For that reason, it is very important. Although the timescale looks long, we should pull teams together now in terms of how we will design and build that submarine because, if we do not, we will not do so in time. Also, because the Australians will have the Virginia class, the Americans will probably start doing a design instead.

Lord Cameron of Chipping Norton: The noble Lord is completely right that we have to get on with it, which is why there is Team Barrow to bring together the town council, BAE Systems and the Government. A lot of money is being put in—£25 billion from the Government and a further £16 million of levelling-up money—to make sure we have not just the defence capacity but the physical capacity in the town and the people to do this. I am confident we can get this done. The Virginia-class submarines are being sold by the Americans to the Australians to help prevent them from having a gap. It is up to us to make sure we do not have a gap and that there is no break between our excellent Astute-class submarines—I am proud that most of them were built during my time in office as Prime Minister—and the AUKUS submarines that will follow.

Lord Alton of Liverpool: My Lords, it was said by the Foreign Affairs Committee of another place that South Korea and Japan should be
“invited to join an AUKUS technological defence cooperation agreement”—
or pillar 2, which the noble Lord referred to in his initial reply. This was not just waiting on events; it urged us to invite them to join AUKUS, and I wondered whether he would give that recommendation further consideration. I will pursue the point made by his noble friend a moment ago. Bloomberg estimated that, if there were a blockade of the Taiwan Strait, it would cost the world economy some $10 trillion. Above and beyond AUKUS, what are we doing to deter the Communist Party of China?

Lord Cameron of Chipping Norton: One of the things we are doing more generally is stressing the importance of freedom of navigation. That lies behind the action we are taking in the Red Sea and I hope to hold discussions with Chinese counterparts in days to come where we will ask them, given the importance of trade to China, to be as fully supportive of freedom of navigation as we are, because that matters wherever you are in the world, including the Taiwan Strait.

Lord Houghton of Richmond: Superficially, this sounds like very good news and I welcome it, but were there no voices at the National Security Council that spoke to caution at all in respect of risk and affordability? In terms of affordability, Team Barrow sounds quite expensive. Is this again going to be at the expense of the conventional programme of UK defence? In terms of risk, is there not a risk of leakage of our very small supply of very highly qualified people, who would rather follow their career paths in Fremantle than in Barrow?

Lord Cameron of Chipping Norton: I do not believe that the noble and gallant Lord’s concerns are right. The money going into Barrow is a drop in the ocean compared to the cost of one submarine: as he well knows, these things come out at about £1 billion each. We need to make sure that Barrow, which has incredible manufacturing expertise, is fit to do this extra work that is going to be required as it scales up to 17,000 jobs. Are we going to benefit as a country? I would say absolutely yes. Rolls-Royce in Derby is going to be providing the nuclear reactors for these submarines—not just for the ones we use but also the ones Australia uses. This is good for our defence, good for our international relations and good for our industrial base.

Palestinian State: UK Recognition
 - Question

Lord Jackson of Peterborough: To ask the Secretary of State for Foreign, Commonwealth and Development Affairs what discussions he had with the government of the United States before his announcement on 1 February that the United Kingdom should recognise a Palestinian state in advance of the conclusion of any future bilateral talks between Israel and representatives of the Palestinian people.

Lord Cameron of Chipping Norton: My Lords, this Government have always supported a two-state solution, and that remains the case. Clearly, recognising a Palestinian state at the right time is part of that policy. My noble friend asked about consulting our allies. Of course, we discuss all issues relating to the conflict in Gaza, and Israel-Palestine relations, but I am pleased to tell him that ultimately the UK has a sovereign and independent foreign policy set by a British Prime Minister and a British Foreign Secretary in the British Parliament.

Lord Jackson of Peterborough: I welcome that Answer. Hamas is a genocidal terror group: for the benefit of the BBC, they are not militants. The Palestinian Authority has lost control of large cities in the West Bank to Iranian-backed terror groups, openly pays salaries to convicted terrorists, and is deeply corrupt and repressive. Palestinian statehood is, I trust, something all of us in this House wish to see, but does my noble friend share my very grave concerns that premature, unilateral recognition of a Palestinian state now risks rewarding Hamas, playing into Iran’s hands, and perhaps jeopardising the chances for a long-term, sustainable peace?

Lord Cameron of Chipping Norton: I absolutely understand where my noble friend is coming from. I just say to him that of course it is not rewarding Hamas. Hamas does not believe in a two-state solution: it believes in the destruction of Israel. My point is that the whole point of a two-state solution is to create long-term, sustainable peace. I think the last 30 years have shown that we will not solve this problem without a solution that gives dignity and security to the Palestinian people as well as vital security to Israel. I say, as a strong friend of Israel, that this is the right approach and we should pursue it.

Archbishop of Canterbury: My Lords, I welcome very strongly the continued emphasis by the Secretary of State on the two-state solution, and his condemnation of the Hamas terrorist group and his call for the liberation of hostages, as was echoed in a statement this morning from the Bishops. But it is not only in Gaza that we are seeing tragedy; we are seeing it in the West Bank, where it is almost forgotten that very large numbers of Palestinians have been killed by people who live in illegal settlements. One of the countries most affected by that is the Hashemite Kingdom of Jordan. First, what support are His Majesty’s Government giving to the Hashemite Kingdom of Jordan, given its vulnerability and its significant responsibility as guardian of the holy places? If it comes under significant pressure, that would widen the conflict appallingly and dramatically. Secondly, what are the practicalities for Jordan in preparing for or aiding a two-state solution, where the flow of refugees towards it—and it has taken something like half its population in refugees—would be a very threatening process for its destabilisation?

Lord Cameron of Chipping Norton: I thank the most reverend Primate the Archbishop of Canterbury for his question. First, he is absolutely right to say that we should focus on what is happening in the West Bank as well as Gaza. It is a chilling statistic that since 7 October, 96 Palestinian children have been killed in the West Bank. There have been a series of very worrying developments and disturbances. That is why the Government are focused on this. Only yesterday, we announced for the first time some sanctions against violent settlers who are carrying out criminal acts in the West Bank.
The most reverend Primate also asked, rightly, about what we are doing to help Jordan. First, in terms of the incredible work Jordan does in looking after refugees, we have given a huge amount of aid and assistance to  help it with the job that it has done. As he says, the crucial thing is to work with the Jordanians, as we are, towards the two-state solution, in which they can play a very big part. A crucial thing that needs to be sorted out is how you move from the current Palestinian Authority, which has a number of issues and difficulties, to a new technocratic Government who would work across the Palestinian territories. The Jordanians can play a big role in helping to bring that about.

Lord Austin of Dudley: My Lords, there are 200 land-based conflicts in the world, half a million dead in Syria, the world’s biggest humanitarian catastrophe in Yemen, and millions slaughtered in Africa—yet the only conflict people in the UK seem to want to protest about is Israel defending itself against the racist, genocidal Islamists of Hamas. What does the Foreign Secretary think explains this irrational obsession with the world’s only Jewish state?

Lord Cameron of Chipping Norton: The noble Lord makes a very important point. If you look across the world and ask yourself, “Where’s the biggest refugee crisis?”, it is not in Israel or in the Palestinian territories; it is either in Sudan, where about 9 million people have moved into Egypt, or you could argue that it is in Myanmar, where Bangladeshis are looking after millions of Rohingyas in very difficult conditions. It is important that we try to keep a focus on what is happening around the world and look at the numbers. That said, the reason people are focused on Gaza right now is the level of death and destruction, and people want to bring that to an end, as do I. This is why we have made this proposal for the immediate pause, moving to the ceasefire, with the five conditions we need to put in place to help to bring that about and work towards a political solution.

Lord Pannick: My Lords, after Israel withdrew from Gaza in 2005, Hamas was elected to power. Having been elected to power, it proceeded to terrorise and then murder its political opponents. Hamas remains very popular in Gaza and in the West Bank. How can we prevent an independent Palestinian state from being governed by Hamas, maintaining its policy of seeking to attack Israel and to murder, rape and abduct as many Israeli citizens as possible?

Lord Cameron of Chipping Norton: The noble Lord asks an extremely good question. We have to try to help to separate the Palestinian people from Hamas. One of the best ways of doing that, apart from making sure that, as I have said, our conditions should include the Hamas leadership leaving Gaza and the dismantling of the terrorist infrastructure, is to offer the Palestinian people—not Hamas, because it is not interested in a two-state solution—a route to better governance, with a reformed Palestinian Authority and the long-term horizon of a two-state solution to give them the dignity and security that they crave and that would help to bring about peace in the region.

Lord Collins of Highbury: My Lords, when the Foreign Secretary made the original statement, he was very clear that we need to show irreversible progress towards a two-state solution—something that both sides of this House have talked about for a long time.  My right honourable friend David Lammy welcomed the Foreign Secretary’s comments, arguing that recognition should not wait for the final status agreement but should be part of efforts to achieve one. I asked the noble Lord, Lord Ahmad, the day after those comments, what we are doing to translate the Foreign Secretary’s desire into discussions with our allies, particularly at the United Nations, and how we give that hope a sense of reality.

Lord Cameron of Chipping Norton: What my noble friend Lord Ahmad and I are doing—we are virtually joined at the hip when we are not travelling separately to the region—is talking to all the partners in the region about how we work towards making that a reality. Recognition is obviously part of a two-state solution, and it should help with the momentum. The point that I have been making is that it should not be the first thing we do, as that would take the pressure off the Palestinians to reform and to do the things that need to happen in the Palestinian Authority. But just because it does not happen at the beginning does not mean that it must wait right until the end. One of the things that is beginning to change and that I think is hopeful is the American posture, which, until now, has been that recognition can come only when Israel and Palestine agree on the creation of a Palestinian state. Doing that would give Israel a veto, in effect, over a Palestinian state, which is the opposite of creating the sort of unstoppable momentum towards a two-state solution that we all want to see.

Lord Purvis of Tweed: My Lords, I welcome the Foreign Secretary’s comments on the flexibility of recognising the state of Palestine before there is a full agreement with the State of Israel. I declare that I will travel to Jerusalem, Tel Aviv and Ramallah from tomorrow night. What message can the Foreign Secretary share with these Benches that I can take to those I will meet that he has persuaded like-minded countries and our allies, who have a long-standing view that recognising the state of Palestine before any long-term agreement is the best platform to get an agreement with Israel?

Lord Cameron of Chipping Norton: After I made my statement, which is absolutely in line with our long-standing policy that recognition should come when it gives the maximum impetus and input to a solution, the Americans announced that they were re-examining their policy and looking at options to see how recognition could best play a part in bringing about a two-state solution.

Business of the House
 - Motion on Standing Orders

The Lord Privy Seal: Moved by The Lord Privy Seal
That Standing Order 44 (No two stages of a Bill to be taken on one day) be dispensed with on Wednesday 21 February to allow the Finance Bill to be taken through its remaining stages that day.
Motion agreed.

Protest Measures
 - Statement

The following Statement was made in the House of Commons on Thursday 8 February.
“With permission, Mr Deputy Speaker, I shall make a Statement on new government measures to tackle unacceptable behaviour at protests.
In the aftermath of the horrific attacks on 7 October, many people took to the streets to make their views heard. Many did so peacefully and respectfully. I had the great privilege of marching alongside many people, including some in this House, against anti-Semitism on the streets of both Manchester and London. Sadly, those protests do not tell the whole story.
Over the past few months, we have all seen disturbing and distressing examples of hateful abuse, of serious damage, and of law-abiding citizens being intimidated and prevented from going about their daily life. The right to protest is fundamental to our democracy, but when we see people hurling racist abuse, desecrating national memorials of great significance to our country, or taking flares to marches to cause disruption and fear, the only reasonable response is outrage and disgust. Tolerating these actions would be radicalising in itself. This Government will not stand by and allow a small minority to incite hatred and commit crimes, undermining our proud tradition of peaceful protest.
Today, the Government have announced a package of measures to put a stop to this criminality for good. Protesters have for too long been able to claim in law that protest is a ‘reasonable excuse’ for criminal behaviour. Blocking roads, preventing ambulances from getting through and stopping people from getting to work or visiting loved ones are breathtakingly selfish acts. The British public certainly do not see an acceptable justification for that level of disruption to their life. That is why we are removing that defence for relevant crimes. Protesters will no longer be able to cite the right to protest as a reasonable excuse to get away with disruptive offences, such as blocking roads.
Through the package that we are announcing today, we will crack down on those who climb on war memorials. In recent months, we have seen cases where individuals have broken away from large protests and scaled national monuments. War memorials belong to all of us. They are the altars of our national grief, and it is clearly not acceptable to disrespect them in that way; it is an assault on the memory of so many who gave their life for our freedom and to defend our nation. Attacking our national memorials goes beyond the legitimate exercise of free speech. We must not give those who commit criminal acts at protests the ability to get away with it by simply hiding their identity.
Once the legislation comes into force, the police will have new powers to arrest protesters at certain protests who wear face coverings to conceal their identity. Those who shout racist abuse and extremist rhetoric will no longer be able to hide from justice. We are also protecting the public by putting an end to people bringing flares on marches. Flares have been used during large-scale protests, and have been fired at police officers, posing significant risk of injury. A new offence will ban the possession of flares, fireworks and any other pyrotechnics  at protests. Anyone who flouts the new rules will face serious consequences, including up to three months in jail and a £1,000 fine for those who climb on war memorials.
The changes that we have announced today build on the legislation that we introduced last year to help the police tackle disruption from protests. We criminalised interfering with key national infrastructure through Section 7 of the Public Order Act 2023. Since we passed the Act last year, the Metropolitan Police have made more than 600 arrests to minimise the disruption caused by Just Stop Oil. On Tuesday, the Home Secretary met policing leaders to thank them for their work, and to encourage the use of all existing powers at their disposal, as well as these new measures, to maintain order at protests. I am very grateful to front-line officers across the country for their efforts and successes in keeping the British people safe during an immensely challenging period. I know that policing these events on a regular basis is both complex and demanding. It takes officers away from crucial work preventing crime and protecting vulnerable people in our communities.
As I have made clear, freedom of expression is vital to our democracy, and this House champions it every day. People must be able to speak without fear, and have their right to peaceful protest protected, but those freedoms and rights are not absolute, for very good reason. There is no freedom to commit violence or intimidation, or to harass others. This country has laws against vocally supporting terror organisations for a very good reason, and last month, the Government proscribed Hizb ut-Tahrir as a terrorist organisation. That group actively celebrated the 7 October terrorist attacks in Israel that led to the rape and murder of many, many people. It is an organisation that has poisoned minds for far too long.
We must, and we will, continue to stand with communities who feel threatened, and ensure their safety wherever they live and work. The Government are sticking to the plan to give police the powers that they need to crack down on crime and keep our streets safe. We will never tolerate hateful, dangerous or intimidating behaviour. We will always put the decent, law-abiding majority first. We will do what is right and fair. I commend this Statement to the House”.

Lord Coaker: My Lords, I thank the Minister for this debate on last week’s Government Statement on protest measures. It is important to start my comments on such a Statement by thanking the police for all the work they are doing to maintain public order across the country. We know that many officers are having to give up rest days to police protests, and those demands are growing. Can the Minister start by outlining how resources are being allocated to meet that demand and what the impact has been on neighbourhood policing? Protest is a fundamental freedom in a democracy, and that right must be protected. If that freedom is abused and used to intimidate, harass or harm others, safeguards are clearly needed.
This is yet another suite of measures to tackle issues arising at protests. Can the Minister confirm that all these additional measures have been requested by  the police across the UK as well as in London, and that they will be included in the Criminal Justice Bill to allow proper scrutiny of the accompanying guidelines?
On the issue of face coverings and the power to arrest those seeking to conceal their identity, is this an automatic offence decided by an individual officer, or is it triggered by a set of circumstances then to be authorised by a senior officer? We all understand that there is legitimate concern about the use of face coverings to conceal identity, but what about Chinese dissidents protesting outside the Chinese Embassy, or Iranian dissidents demonstrating outside the Iranian Embassy? Will they still be able to cover their faces, which they may well wish to do to protect families at home from intimidation or worse? We have a proud tradition of giving safe haven to dissidents opposing oppressive regimes.
We support the measures relating to flares and fireworks, which have been used to fuel public disorder and intimidate the police. Can the Minister say how they will be enforced in protests, which sometimes involve thousands? Our war memorials rightly hold a special place in the collective affection and respect of our nation. They remember those who made the ultimate sacrifice to protect the very freedoms which a very small number of people seek to desecrate. This has sparked understandable outrage across the country, including from me personally. My uncle, whom I am named after, was killed on D-day. His name is proudly remembered on a war memorial near his home village of Cheldon in Devon, close to both the town of Chulmleigh and the former constituency of the noble Lord, Lord Swire. To think of this and other war memorials being under threat or defaced is unthinkable. Can the Minister outline how the new measure in the forthcoming Bill is expected to work in practice?
Also raised was the issue of the definition of “hateful extremism”. The Government are looking at this, and work is ongoing. Can the Minister update us on what progress has been made, and when can we expect a Statement? The police of course need the necessary laws to police protests and, importantly, the confidence to use them. The Minister in the other place raised the issue of the proscription of Hizb ut-Tahrir. Are other groups under consideration for proscription, and have the Government assessed their involvement in any of the protests that we have seen? What action, if any, are the Government seeking to take?
Above all, in our proud democracy there is the right to peacefully protest. That is a fundamental freedom in our country of which we all are proud. It must not be abused but it must not be curbed unnecessarily either. The right balance must be struck between safeguarding that right to protest and the important duty to safeguard the public.

Baroness Doocey: My Lords, I appreciate that the Government are trying to strike a balance among competing priorities—maintaining the right to peaceful protest, restraining incitement to racial and religious hatred, and keeping the country moving, free from disruptive events. It is right that police use all available powers to arrest those who go beyond what is acceptable for a peaceful protest, not least when their actions are  motivated by hate. Protest should not be used as a shield to allow anti-Semitism, Islamophobia or any other type of hatred to fester with impunity.
However, we must ensure that the tactics employed by a minority do not undermine the ability of others to protest peacefully. I have a number of concerns, and it would be helpful if the Minister could address them when he responds. The provisions announced to prevent the use of facial coverings plainly bear a relationship to the increased use of facial recognition technology in policing. The Policing Minister is on record as saying that he is already encouraging police forces to search all available databases, including the passport database, to identify people using facial recognition technology for crime generally.
Clause 27 of the Criminal Justice Bill creates a very wide power to access driver licence records for this purpose, but there has been little public debate on this or on the parameters of the accelerated use of such technology. Given the potential freedoms that this could infringe, is a legal protest the correct context for technology to be used? Should the faces of people engaged in lawful and peaceful protest systematically be recorded and added to databases? Would there be a temptation to create lists of people who attend such protests, with the justification that these are people who are not in favour of the status quo and might, at some future date, cause trouble?
Police already collect information on political activists. However, attending a protest should not qualify as criminal activism. The fact that facial recognition is being introduced into policing without the debate or openness that is needed is a cause for concern. Since the Government are proposing amendments to the Criminal Justice Bill, will the Minister commit to setting out in that Bill the circumstances in which this technology should be used? Will he commit specifically to addressing the many concerns that the systems can be particularly bad at recognising black female faces? This is powerful technology, but it is not infallible by any means.
As things stand, its use enjoys public support, but that support may diminish if it is deployed disproportionately, causing problems for minority groups or being used for minor offences. It is surely in the interests of all of us who want to continue to see policing by consent for this to be avoided.
Finally, I want to raise the question of police resources. The Home Affairs Committee recently expressed concern about the effect that the increasing number of protests is having on the number of rest days being cancelled for police officers. Last year the Metropolitan Police had to cancel 4,000 rest days to police protests at a cost of nearly £19 million. Can the Minister say what the Home Office is doing to ensure that police forces are reimbursed for the cost of these cancelled days? When I was a member of the Metropolitan Police Authority, we had a dreadful job trying to get the money back from the Home Office. I suspect that things have not changed very much. What is being done to support officers’ well-being when large numbers of rest days have to be cancelled?
Will police officers receive the necessary resources and training to identify and prevent hate crimes, including threats and incitements to violence on social media? According to the official figures, between October and December last year there were more than 1,000 protests and vigils and 600 arrests, accounting for 26,000 police officer shifts. This issue is not going away. The duty of care that we owe police officers needs to be addressed as a matter of urgency.
These are among the issues that we on these Benches will want to raise during the passage of the Criminal Justice Bill. I look forward to the Minister giving us his early indications of his views.

Lord Sharpe of Epsom: My Lords, I thank both the noble Lord, Lord Coaker, and the noble Baroness, Lady Doocey, for their generally supportive remarks. Like the noble Lord, Lord Coaker, I join in congratulating, thanking and praising the police for their strenuous efforts to keep us all safe during the recent heightened protest activity.
Both noble Lords asked me about the questions raised in response to the original Statement, regarding the Home Affairs Select Committee pointing out that 4,000 rest days had been lost, coming at a cost of about £18 million or £19 million. Obviously, that is very concerning, but I have to say that the police uplift programme has helped many forces around the country significantly with their numbers. That helps to minimise the number of rest days lost. Unfortunately, the Metropolitan Police in London did not manage to fulfil its police uplift numbers, and that has financial consequences as well as a consequence for the rest of the officers employed. It is regrettable, but I am afraid it is very much for the Metropolitan Police to up its recruitment to sort out that particular problem. That is not the same as saying that we do not care about it or are not keeping a very close eye on it. We do.
I should also point out that the police have arrested more than 600 people over the course of the protests, and some 30-plus were related to Terrorism Act offences. Once again, I thank the police for their efforts.
On the question about whether these laws were requested by the police, the police have a comprehensive suite of powers to maintain public order and to keep the public safe. However, we keep their powers under constant review and, when gaps are identified, by whomever, we seek to legislate for them. I am not precisely sure how many of these powers were asked for by the police; I know that the bulk of them were, but not precisely which ones. When we come across gaps in the legislation, we seek to make these types of changes.
Those were very good questions on face coverings, particularly as regards the legitimate wearing of face coverings in protests. It is not difficult to come up with a number of scenarios that would classify themselves as legitimate. This was addressed in detail by my right honourable friend the Security Minister. The guidelines in the legislation that we are setting out will cover this, because police officers will have discretion to give an order requiring a face covering to be removed, but those commanding the policing of protests will have discretion over when they ask for that instruction to be carried out.
Under Section 60AA, the new criminal offence of concealing an identity will apply only when there is a particular authorisation on a protest, and those authorisations come only when there is a risk of serious violence or crime. Just as a reminder to the House, Section 60 offences can be ordered only by those of the rank of inspector or above and for a period of 24 hours, which is extendable for a further 24 hours. So they apply only to protests and only where an authorisation is in place. I hope that answers and assuages noble Lords’ concerns to some extent. I will come back to facial recognition towards the end of my remarks.
The noble Lord, Lord Coaker, asked me about pyrotechnics, flares and disorder. The current legislation on the use of fireworks in public places does not consistently prohibit the possession of pyrotechnic articles during a protest but limits it to specific circumstances, such as the use of fireworks in public places and possession of explosives other than for a lawful purpose. It is not already an offence to be in the possession of such articles at certain musical events and football matches, for example, but this extends it to processions and protests. The new measures do not provide police with new stop and search powers, but they do allow the police to make an arrest when an individual is holding or lighting a flare at a protest.
I associate myself with the remarks of the noble Lord, Lord Coaker, on war memorials. I am also delighted that this is taking place, for all sorts of reasons. I do not have a huge amount more to say on this subject; I think we have all been offended by the antics of certain protesters who have clambered all over war memorials. The Security Minister in the other place described them as
“altars of our national grief”.—[Official Report, Commons, 8/2/23; col. 379.]
That description could be extended, but it is very appropriate none the less and sums up all our feelings.
The noble Lord, Lord Coaker, also asked me about hateful extremism. He is quite right that there is some thinking about that at the moment. The Secretary of State for Levelling Up, Housing and Communities is working on a definition of extremism alongside the Attorney-General. Of course, this is an extremely complex subject and conversation, so I will update the House when I have more, but I am afraid I cannot at the moment.
The noble Lord will know what I am about to say on proscription. The Government do not comment on groups that are potentially about to be proscribed or are under consideration. This will come under the Criminal Justice Bill.
I do not think facial recognition is entirely aligned with the subject of the measures that are being taken today. However, I understand the noble Baroness’s concerns and this subject will have to be further debated. It is a philosophical discussion about freedoms, rights and proportionality, and I have no doubt that we will revisit it in due course.
These measures are proportionate and carefully thought through. We will be discussing them at greater length, and I thank noble Lords for their support.

Viscount Hailsham: My Lords, I hope my noble friend will be cautious about invoking criminal law unless there are clear mischiefs to be addressed. I entirely agree with the noble Lord, Lord Coaker, about face coverings and was much reassured by what my noble friend said, but I am much less happy about war memorials. Clearly, clambering over a war memorial is an unattractive and distasteful business, but I am far from clear that it is such a mischief that we should invoke the criminal law and impose criminal penalties. Many years ago, when my wife was 20, we were clambering over the lions in Trafalgar Square. I do not want to be told that we were defiling the memory of Lord Nelson.

Lord Sharpe of Epsom: I take my noble friend’s point, though I must admit that I did not realise that he had quite such a colourful past. I am afraid that, on this, the Government disagree, and think that this is a proportionate measure.

Baroness Chakrabarti: My Lords, not for the first time in the last 24 hours, it is a pleasure to follow the noble Viscount, Lord Hailsham. Why was this announcement made by vague press release on a Wednesday evening, rather than in the House of Commons? While I am grateful to the Minister, as always, for that lengthy answer, I do not quite understand the gaps in the present law. We have all these stop and search powers, for example, including specific and blanket powers in relation to protest. Why do we need additional face covering removal powers—are they not a form of stop and search? I totally agree with the noble Baroness, Lady Doocey, on the huge relevance of facial recognition technology to why people are concerned about uncovering their faces. At the moment, it is for the police, totally unregulated by statute, to decide who goes on the watchlist, what kind of technology is used, and the trigger for stop and search on the basis of being on this watchlist. The noble Baroness is quite right: if we are going down this path in relation to face coverings, we should be regulating the use of facial recognition technology as well.

Lord Sharpe of Epsom: I do not entirely disagree with the noble Baroness, but I do not think this is the particular forum for that discussion. It is clearly a philosophical discussion, as much as a legal and operational one, that is required around the appropriate extent of facial recognition technology. I am sure that is a debate we will return to. These particular powers are very specific and can happen only under certain circumstances, so in this context they are proportionate.

Archbishop of York: My Lords, like others, I entirely share the views about war memorials and their desecration, and fireworks and flares—there is a lot that is sensible in this. On face coverings, what concerns me is the law which we often do not often think about—the law of unintended consequences. To those dissidents, I would add religious minorities to the list of those who may be concerned about this. I wonder whether the effect of this will be that more people will wear face coverings, not fewer, because they are concerned about facial recognition. I find it hard  to understand why this should be a matter for the law. If somebody commits a criminal offence while on a march, we already have the powers to deal with them. If somebody on a peaceful protest chooses to wear a face covering, I find it hard to understand why that, in and of itself, is a problem. The Minister has explained that this will be used only under certain circumstances, but if I have heard him correctly it is around the “risk” of criminal activity and violence. We do not arrest people because we think that they might be doing something. If the protest is peaceful, why should somebody not wear a face mask? I am struggling to understand why this has become such an issue, and I am concerned about minority groups who could be adversely affected by this.

Lord Sharpe of Epsom: The current legislation gives police the power to direct people to remove face coverings in designated areas and to seize face coverings, but there is a loophole, in that an individual could follow the direction of an officer to remove their face covering but then move to a new area and redeploy the face covering. We are trying to close that loophole. I take the most reverend Primate’s point about minorities and so on, but, as I have tried to explain, this is being applied to protests only where there is an authorisation in place, so it is time-limited and very specific.

Lord Walney: My Lords, I welcome this package, a number of measures in which I recommended in my role as the Government’s independent adviser on political violence and disruption. Can the Minister say more about how the Government intend to mitigate the Ziegler judgment, which is a very welcome commitment on the part of the Government to make it clear that protest is not sufficient justification for criminal acts such as vandalism and disruption of highways?

Lord Sharpe of Epsom: The noble Lord asks a very good question, because this is about, effectively, reasonable excuse. The Ziegler judgment held that obstructive protests that intentionally cause disruption can be protected by Articles 10 and 11 of the ECHR. That means that those who purposefully disrupt the daily lives of others can escape justice under the guise of protest. Our amendments will mitigate the impact of this judgment and ensure that those who deliberately disrupt others by obstructing the highway cannot rely on protest before the court as a reasonable excuse using the definitions defined under the PCSC Act.

Baroness Foster of Oxton: My Lords, most of us have witnessed and been involved in protests, and even though some have been quite violent and very disturbing, what we have seen over the past four months with the pro-Palestinian marches and protests in London has been on a completely different level. The police have had their hands tied behind their backs, not least because they have been unable to identify so many of those involved who have been wearing face coverings, and with huge crowds the police have been unable to see exactly who they are. Notwithstanding that the police have made some arrests and have charged and prosecuted certain individuals, the numbers involved are limited and small. Month on month,  people have been allowed to protest, calling for the death and destruction of Jews and Israel, and to show Nazi symbols, with Islamic extremists who have been involved with Hizb ut-Tahrir. Permitting them to carry on like this is not acceptable. I fully support this proceeding to make sure those individuals are dealt with properly.

Lord Sharpe of Epsom: My noble friend raises some very good points. She is right that the simple fact of the matter is that recent protests have upped the temperature of protest. However, we have to remain proportionate, and I think this strikes the right balance.

Baroness Jones of Moulsecoomb: My Lords, I want to put it on record that I am appalled at the behaviour of the noble Viscount, Lord Hailsham, in climbing on the lions in Trafalgar Square. I think that is unacceptable. I have been on a lot of protests and I have never climbed on a war memorial or a lion. However, I agree with him in asking why on earth we are making this a criminal offence. All the officers I have spoken to—admittedly a small sample—have said that they do not need these powers and that they have enough powers. What these extra powers do is take away the discretion that they have in dealing with people, which is something they value because they do not want to be tied up in having to go off to the police station with loads of arrested people. Most of these measures are totally unnecessary. I completely support the firework ban; they are so environmentally polluting. But the Government cannot ban everything that they do not like; that is a mistake that some Governments get into, and that way lies a loss of democracy. In response to the noble Baroness, Lady Chakrabarti, the Minister said that facial recognition is for another day and it is not quite covered now. I argue that oversight of this is urgent, so in good time is not enough. The noble Lord, Lord Harris, said months back that this is a horse that has bolted out of its stable. We really have to find some way of making sure that the information is not passed out by the police, which it is in some cases now. Will the Minister think about bringing this in or discussing it urgently?

Lord Sharpe of Epsom: On the noble Baroness’s latter point, those discussions are ongoing and will continue within the Home Office. I certainly raise the subject regularly, not least because I too am concerned about proportionality; I think it entirely right. I am of course aware that the Government cannot ban everything they do not like, much as it might sometimes be fun to do so. On war graves, cemeteries, war memorials and so on, the public outrage was fairly significant, and noted. It was clear that this offended a great many people from all parts of the community. I do not know which officers the noble Baroness spoke to, but they should have spoken to their boss, because he asked for these powers.

Baroness Falkner of Margravine: My Lords, I declare an interest as chair of the Equality and Human Rights Commission. As the Minister would expect, I looked at this quite carefully in the context of Article 11 of the ECHR. He is right, and I accept fully, that  Article 11.2 gives the state the right to bring in public order laws and a whole of host of other things. I would say to colleagues who are feeling uncomfortable about this that they need to look at the wording of Article 11.2. However, my question to the Minister is slightly different. It relates to the Aarhus Convention, which the United Kingdom signed in 2002, and which is there to defend the rights of environmental protesters. The Special Rapporteur on the Aarhus convention recently visited the United Kingdom. He has since sent a letter of complaint to the United Kingdom Government concerning environmental protesters. Is the Minister minded to reply to that letter and to publish the reply?

Lord Sharpe of Epsom: I am afraid that this is the first I have heard of this, so I cannot comment further, but I will of course look into it. These changes are compatible with the ECHR and do not prevent individuals exercising their rights to freedom of expression and assembly. Many of the offences affected, including public nuisance, which involve serious harm to or obstruction of the public’s rights, are highly likely to fall outside of the protections of ECHR rights or within the state’s margin of appreciation. On the rights of environmental protesters, I do not think we should elevate any particular set of protesters’ rights above any other.

Lord Deben: Will my noble friend the Minister congratulate my noble friend Lord Hailsham on his ability to climb one of those large animals in Trafalgar Square? At the same time, does he accept that what my noble friend said is a salutary reminder? We are becoming too concerned about restriction and not concerned enough about freedom. I am very concerned that the normal habits of proper protest—particularly at a time when parliamentary democracy is under very considerable pressure—are being undermined by the constant provision of yet more new things that the police want in order to control. I would like to see a real understanding of the importance of protest. I very much agreed with the most reverend Primate when he said that he could not quite see why people who were not doing anything illegal should be told to remove their face coverings. For the Iranians and the Chinese, face coverings are essential if there is to be protest.

Lord Sharpe of Epsom: I am very happy to join in the congratulations to my noble friend Lord Hailsham on his lion-climbing expertise, but I am afraid that I disagree with my noble friend when it comes to climbing war memorials as a normal part of protest. What is normal about climbing a war memorial?

Baroness D'Souza: My Lords, if ever there was an example of the slow attrition of our democratic freedoms, it is this. First, experience tells us that, once a law is on the statute books, it will in future, merely as a convenience, be abused to exert control. Secondly, why on earth would wearing a face covering be made a criminal offence, if not to prepare to punish someone who has committed no crime whatsoever as yet?

Lord Sharpe of Epsom: My Lords, I have already largely answered that question on face masks, but, for the avoidance of doubt, I will say it again: we are creating a new criminal offence of wearing a face  covering for the purpose of concealing identity when the police place a particular authorisation on a protest. The particular authorisation point is surely the key.

Baroness Hamwee: My Lords, the Minister says that live facial recognition is irrelevant to this. I see a very clear intersection with these issues. I agree with him that there are philosophical aspects—I would say ethical aspects—but there are practical ones as well. The public looks at it in both those contexts. I was until recently chair of your Lordships’ Justice and Home Affairs Committee, and the Minister may have seen a letter that we wrote to the Home Secretary very recently on the subject of live facial recognition. I base my questions on that. First, on the issue of how live facial recognition is applied, one police force said to us—we have not been able to obtain any backing from that force for this comment—that the watchlist is made up of people known to have committed offences, or wanted for offences, who may have an intent to commit an offence. So how will a watchlist be made up for the use of live facial recognition of a protest? In particular, will images obtained during a protest or previous protests be used to make up a watchlist for a subsequent protest?

Lord Sharpe of Epsom: First, I did not say that it was irrelevant. I said that this is a very specific set of circumstances and I accept that there is a whole separate debate about facial recognition that we need to have in the near future—I accept that it is a matter of urgency. I cannot honestly recall seeing the noble Baroness’s letter to the Home Secretary. I will track it down and, if I may, I will come back in writing on that question because I genuinely do not know the answer.

Baroness Fox of Buckley: My Lords, one of the reasons why there is this problem is that the police appear over a period of time to have been confused about what is a criminal act or not, sending messages on social media defining jihad in the most peculiar way, as some kind of inner struggle, or more recently saying, “We have looked at that flag, checked it out, and it is not a threat”, even though it is being used by ISIS. This makes the public more inclined to think that the criminal law might be needed, rather than the enforcement of existing laws.
Does the Minister concede that we have a deeper problem than climbing on statues? We earlier discussed the horrors that children in Gaza are enduring—weaponised by demonstrators walking around with dolls covered in blood, shouting “Blood on your hands” at our fellow Jewish citizens. We talked about disinformation earlier and we now know that conspiracy theories are mainstreamed to political parties—no facemasks required. Would the Minister concede that maybe we should enforce the laws we have, but avoid criminalising other behaviour? There is the bigger problem of a growth of anti-Semitism in society, which really needs to be challenged as much as any other racism that is a scourge.

Lord Sharpe of Epsom: I agree entirely with the remarks of the noble Baroness about anti-Semitism which I find personally disgusting, as do the Government, as she will know. On police confusion, it would be  unwise for me to comment on the matters the noble Baroness describes, not least—as we frequently say from the Dispatch Box—because of the operational independence of the police, which I am very happy to defend. As for glorification, which she effectively talks about, the UK has a strong counterterrorism framework —one of the strongest in the world. It is important to recognise that. It is an offence to encourage an act of terrorism, and that includes glorifying—including by praising or celebrating—action in committing or preparing acts of terrorism where others may be encouraged to emulate that action, and that offence can be committed recklessly. As I said earlier in answering the noble Baroness, Lady Doocey, some 30 people have been arrested since the start of these protests for offences under the Terrorism Act. The police are not confused when it comes to policing those sorts of marches; the statistics prove otherwise. These measures are proportionate to the sorts of activities we are describing.

Victims and Prisoners Bill
 - Committee (5th Day)

Relevant documents: 7th Report from the Delegated Powers and Regulatory Reform Committee and 1st Report from the Constitution Committee. Welsh Legislative Consent sought.

Amendment 122

Baroness Thornton: Moved by Baroness Thornton
122: After Clause 28, insert the following new clause—“Code for victims of major incidents(1) The Secretary of State must issue a code of practice as to the services to be provided to victims of major incidents by persons having functions relating to—(a) victims of major incidents, or(b) official inquiries and investigations following a major incident.(2) In this Part, the “code for victims of major incidents” means the code of practice issued under this section.(3) The code for victims of major incidents must make provision for services which reflect the principles that victims should—(a) be provided with information to help them understand the investigatory process following the major incident of which they are a victim;(b) be able to access services which support them (including, where appropriate, specialist services);(c) have the opportunity to make their views heard in the investigatory process following the major incident of which they are a victim;(d) be able to challenge decisions which have a direct impact on them.(7) The code for victims of major incidents may make different provision for different purposes, including different provision for—(a) victims of different descriptions;(b) persons who have different functions of a kind mentioned in subsection (1).”

Baroness Thornton: My Lords, in moving Amendment 122, I shall also speak to Amendment 123. I thank Justice and Inquest for the briefings they have given us about this issue. I hope the noble and learned Lord the Minister will be back with us at some point as the Bill proceeds, although the duo who have taken his place are doing a great job.
These amendments follow on from our debate at the end of the proceedings last week about victims of major incidents and how they should be treated. The amendments are about the fact that bereaved people and survivors in inquests and inquiries will have suffered serious harm but do not receive the same recognition from the Government as victims of crime, so are not entitled to the minimum level of support and services. Instead they are often expected to navigate complex legal processes, with little recognition of the harm they have suffered or the trauma they have faced.
Under Clause 2, the victims’ code in the criminal justice context would reflect the principles that victims
“(a) should be provided with information … (b) should be able to access services which support them … (c) should have the opportunity to make their views heard … (d) should be able to challenge decisions which have a direct impact on them”.
Applying these principles to the victims of major incidents and interested persons at inquests would have a significant, practical and symbolic benefit, consistent with the Government’s pledge to place victims at the heart of their response to public tragedies.
Extending the provisions of the victims’ code could be achieved by introducing a requirement in the Bill for the Secretary of State to issue a separate victims’ code relating specifically to victims in the context of inquests and inquiries. Such a code could be guided by the same principles and have the same weight and legal status as its criminal justice counterpart. Before drafting the code, the Secretary of State should be required to consult the survivors of major incidents and the bereaved. Further consultations should be required before any changes were made to the victims’ code or its provisions relating to victims in the inquests and inquiries context.
The Government could be invited to suggest their own way of achieving the proper support for victims of major incidents. These are probing amendments about the best way forward, and this may not be it. Inquest contends that
“affording victims of major incidents and Interested Persons entitlements under the Victims Code would represent a recognition of their status as victims of significant, and often wrongful, harm who should be treated in a manner that is dignified and promotes participation”.
I beg to move.

Baroness Brinton: My Lords, I thank the noble Baroness, Lady Thornton, for tabling these important amendments creating a code for victims of major incidents and the processes by which it should be laid before Parliament. At Second Reading, a number of noble Lords raised the problem in the Bill that faces victims who are not victims of a type of crime listed in Schedule 1 and relating only to the first part of the Bill. It is self-evident that the victims of major incidents are not all covered by crime, or sometimes criminality may not be evident for a long period after the incident.  However, the consequences of these incidents are often life-changing and require the same sort of support that victims of serious crimes do.
It would be iniquitous if the victims of aircraft accidents, flooding disasters, stadium collapses and many others were not able to access the support of the relevant services via an advocate and agencies that they need. That is why amendments debated last week, as well as those today, make strong arguments for provision. The advocates also need to know what rights these victims have in major non-criminal incidents and which services to refer them to.
The Government announced nearly a year ago that they would provide better support for bereaved families and eyewitnesses of homicide and major incidents, and specifically quoted the Manchester bombings as an example. In the statement, the Lord Chancellor and Justice Secretary, Alex Chalk KC, said:
“The Homicide Service provides vital support to the families of victims under the worst of circumstances—ensuring they have the emotional and practical help they need to cope with their loss … By expanding the service to include eyewitnesses and bereaved families of major incidents across England and Wales thousands more people will be able to access the support they need as early as possible”.
Further on in the announcement, Edward Argar MP, then victims Minister, specified:
“This expansion of the Homicide Service, and additional new funding, will help ensure that more people bereaved through homicides and major criminal incidents across England and Wales, and eyewitnesses to those events, know they have somewhere to turn for help, where they can get the support they need”.
I commend the Government for that announcement.
However, victims and families of the Hillsborough tragedy, the Grenfell Tower fire and the Shoreham air disaster, for example, would not come under the enhanced service and would find it distressingly difficult to navigate in the days, months and years after the incident. Will the Minister say why the decision was taken to exclude those victims of major incidents that were not very serious criminal incidents, not obviously criminal incidents or definitely not criminal incidents under the rights of the victims’ code? I support both amendments.

Baroness Hamwee: My Lords, there is obvious scope for confusion on the part of—I try not to use the word “victim”, because I do not want to cause confusion—people who are caught up in incidents which may or may not be criminal. We could be in danger of causing resentment among people who are caught up in non-criminal incidents because what is available to them is insufficient. That is thrown into clarity when looked at against the victims’ code. The legislation needs something like the amendment and clarity on the part of everyone who is operating as to what applies. Points were made throughout many of the previous debate about the need for signposting, and I see that very much in the context which the noble Baronesses have referred to.

Baroness Jones of Moulsecoomb: My Lords, I support both amendments. I shall refer to a different group; the noble Baroness, Lady Brinton, mentioned  several incidents that would cause the amendments to kick in. However, there is another category, and that is victims of state wrongdoing. For example, the “spy cops” scandal shows what goes wrong when a police unit goes rogue and the state compounds the abuse of power by doing all it can to minimise and cover up. Those cover-ups leave victims powerless and alone and are the reason we need this victims’ code to apply to them as well.
There are famous cases such as Hillsborough and the killing of Jean Charles de Menezes. There is also a long history of Met police officers—those of us who were on the London Assembly or the London police authorities saw this many times—being accused of crimes and allowed quietly to retire early.
There is the emerging scandal of sexual and domestic abuse being systematically ignored within the police service when the accusations are directed at police officers by women who are their partners or even fellow officers. We heard this week of examples in Devon, with officers accused but still promoted to units specialising in domestic violence. These are not one-offs or rotten apples; this is a systemic failure to protect women and ensure that they get justice. The victims’ code would help to redress that.
Many such victims have to crowdfund if they are to have any hope of engaging with the legal process to find justice. I have worked with many victims seeking justice through inquests and public inquiries, and it is a very disorienting process for them. I very much hope that these two amendments will encompass that group: those who are victims of state wrongdoing.

Lord Marks of Henley-on-Thames: My Lords, these are probing amendments, as the noble Baroness, Lady Thornton, explained, and they would substantially increase the range of the Bill in relation to major incidents. That is all to the good. Part 1 of the Bill, as we know, is concerned with victims of criminal conduct and, because of the provisions concerning the new code, is relatively comprehensive. However, Part 2, in connection with victims of major incidents, is not.
Part 2 as presently drafted is concerned entirely with advocates for victims of major incidents. The introduction of the scheme for the appointment of standing advocates and other advocates is a welcome reform, but there are many other areas where victims of major incidents need more support than they currently receive. My noble friend Lady Brinton gave a number of examples. We heard of a further example last Wednesday: the argument about permitting victims’ relatives to register the death of those victims. That is an important issue—one which has received far too little attention before—but is only one of a very large number of issues facing victims of incidents that the Bill simply does not cover.
There are issues concerning the operation and impact of the coronial system more generally, for example, or the availability, establishment, conduct and reporting of public inquiries, as well as representation at those inquiries. There is also the implementation of recommendations of inquiries and investigations, and the monitoring of that implementation; the provision of information to victims and their families; the provision  of practical and financial support to victims after major incidents; comprehensive signposting, as mentioned by my noble friend Lady Hamwee; and ensuring that at times of disaster there is a dedicated support system available to victims and their families.
Much of this has been called for by Victim Support and others over some years. The Government’s response has been helpful in providing for local resilience forums. These work well in some areas, but the evidence we have seen shows that they work far less well in others. Victim Support and other charities of course do a great deal to co-ordinate and supply support services, but they are charities and limited by funding restraints in what they can do.
Victim Support recommended in 2020 that local resilience forums should be under a duty to produce civil contingency plans to a minimum standard. I suggest that a new, separate code for victims of major incidents would be a sensible and practical way to achieve a number of worthwhile ends. Primarily, it would set out the services and responses that victims of major incidents would be entitled to expect from public authorities and others. Secondly, it would give victims comprehensive information on how to access the services they need. Thirdly, it would enable local resilience forums to understand what services they needed to provide and so ensure more comparability across the piece. Fourthly, it would establish a standard of good practice, to enable local resilience forums and all responders to know what is needed and expected. A feature of the code I would applaud is that it could be regularly updated to reflect best practice to ensure that unnecessary shortcomings in some areas could be addressed.
These are, as we have said, probing amendments and it is not for now to attempt to draft what should go into such a code. What is needed is a commitment to devote resources to drafting such a code, thinking carefully about it and to consulting on what is needed, with a view to such a code being ultimately incorporated in statute in the same way as we seek to incorporate the victims’ code in this Bill.

Lord Roborough: My Lords, I thank the noble Baroness, Lady Thornton, for Amendment 122. This amendment would require the Secretary of State to prepare and issue a new code of practice for victims of major incidents. I will focus my response on the content of Amendment 122, as Amendment 123 is consequential on the former. While I understand the intentions of the amendments, I do not believe they are necessary, because existing codes and related commitments are already in place to achieve their aims.
First, the purpose of establishing an independent public advocate is exactly as the noble Baroness has outlined. It is to ensure that victims understand the processes and actions of public authorities and how their views may be taken into account; to provide information concerning other sources of support and advice; and to communicate with public authorities on behalf of victims in relation to the incident, especially in situations where the victims have raised concerns. Through the advocate’s ability to act as a conduit  between victims and the Government, victims will have the opportunity to make their views known and have their voices heard to effect change in real time.
Secondly, it is likely that in most circumstances in which a major incident is declared and an advocate is appointed the victims will have been a victim of a crime. In such instances, they are already covered under the victims’ code, which sets out the services and support that victims of crime can expect to receive from criminal justice agencies. An additional code for victims of a major incident may therefore be duplicative, and as such may be counterproductive.
The noble Baronesses, Lady Thornton, Lady Brinton, Lady Hamwee and Lady Jones of Moulsecoomb, as well as the noble Lord, Lord Marks, have argued powerfully that non-criminal major incidents may need to be addressed. Victims of non-criminal major incidents will have an advocate appointed to help them access support services, navigate the processes—

Baroness Thornton: I wonder whether the code would cover the Hillsborough situation. It seems that the definition the noble Lord has just given would not cover that situation—one in which people may think that a crime was committed but nobody has ever been charged with a crime, and there were definitely a very large number of victims.

Baroness Brinton: I am grateful to the noble Lord for allowing me to intervene. The other point he has raised about the type of—if I can call it this— “victimhood” completely ignores the experience of the victim, the journey they have to make, and the services, which are so vital to the victims’ code. How can he explain that victims of major incidents that are not deemed to be a crime at the time would be able access those services in the same way? They are no less victims.

Lord Roborough: I understand the points made by both noble Baronesses. I have had extensive dialogue with the department on this point today and I will try to give the best answers I can. We can follow up further beyond that.
As cases of non-criminal major incidents do not go through the criminal justice system, the measures in the Bill and code are not appropriate for this cohort. If a major incident subsequently becomes criminal, victims will be entitled to services under the code. The majority of measures under the code help those going through the criminal justice system, so would not be appropriate for those who are not.
In relation to support services under the code and broadening access, expanding these to those incidents where no crime has been committed could impact access to support services designed for victims of crime, but that does not prevent separate provision designed to meet the needs of those who have experienced a major incident.

Baroness Brinton: I am really sorry to intervene again and am very grateful to the noble Lord. The amendment does not say that it is the same victims’ code as under Part 1 of the Bill; this is a different victims’ code. Can he explain to your Lordships’ Committee why a separate code, often with references to different services and agencies, would impact on the other one?

Lord Roborough: As I have already said, I believe that most victims will be victims of crime; most major incidents will involve criminal behaviour of some description, or a criminal investigation. We believe it is a subset, but nevertheless a very important subset, of victims who need to have their needs addressed. We completely agree with that.

Lord Marks of Henley-on-Thames: The Minister has accepted that there is a subset and, as the noble Baroness, Lady Brinton, has demonstrated, it is a very important subset of victims who are not victims of crime but of tragic accidents or incidents. I am not sure that his answers so far and his speech so far have taken in the real difference, which is that victims of crime are involved in process that leads to—and is at least partially resolved by—a criminal trial, where there is to be such a trial, or a criminal investigation where it does not lead to a trial.
The Minister has accepted that the existing victims’ code is directed to that set of circumstances. Victims of a tragedy that is a major incident which does not involve crime—or, as the noble Baroness, Lady Thornton, pointed out, may or may not involve crime but does not lead to a criminal process—have a whole different set of needs that arise from tragedy rather than crime. I cannot understand from the Minister’s answers why a separate victims’ code is inappropriate in those circumstances. There may, of course, be areas of overlap but why is there no separate code to deal with this very real issue?
The additional point is that I would suggest—and the Minister has not suggested otherwise—that all of this cannot be addressed simply by the provision of an independent public advocate, however worthy that is, and it is.

Baroness Jones of Moulsecoomb: While the Minister is still sitting down, I agree with everything that has just been said but also the victims I was talking about—the victims of state wrongdoing—have not been treated as victims of crime so they would come under the original code, except they have not had access to all the information, and so on. It is worth understanding that the current code is not enough. Plus, I am “Jones of Moulsecoomb”, not “Jones of Whitchurch”—no offence.

Lord Roborough: I apologise to the noble Baroness, Lady Jones of Moulsecoomb. I am grateful to the noble Lord, Lord Marks, for a much more eloquent summing up of what I was trying to say than I was capable of doing.
The Government acknowledge that there is a subset of victims of major incidents where a crime does not occur who are not being addressed because the victims’ code addresses principally the victims of major incidents where crime does occur. The Government believe that the independent public advocate will be a significant step forward in helping all victims of major incidents to have their needs met during this very difficult time.
The Government’s view is that the charter and the proposed code for victims of major incidents bear many similarities and it may be duplicative to implement both.  The Government are also not convinced at this time of the necessity of placing these codes and charters which aim to change culture on a statutory footing, but we are happy to consult all Ministers, given the strength of feeling about how best to address the needs of victims of major incidents where crime is not involved. As I say, we have had dialogue today on exactly this matter and I am conscious that I am not giving noble Lords a very good answer but I think it is best if we agree to consult on that, if that is acceptable.
In answer to the points made by the noble Baroness, Lady Jones of Moulsecoomb, about cases where the victims’ code is not followed and where, potentially, victims are victims of state actions or some other incident, the victims can direct complaints to the organisation itself. It will have internal complaints-handling processes in place; I accept that in this particular instance that may not be much use. But if they feel that their complaint has not been resolved, they can escalate it to the Parliamentary and Health Service Ombudsman, who will investigate further.
Through the Bill, we are making it easier for complaints to go to the Parliamentary and Health Service Ombudsman where the complaint relates to the complainant’s experience as a victim of crime. It may also be open to victims to challenge a failure to deliver the entitlement set out in the code by way of judicial review. This will depend on the circumstances and standard public law principles will apply. As the most senior governance—

Baroness Brinton: I apologise for intervening again, but this is Committee and I am trying to understand. I am grateful to the Minister for outlining possible alternative routes, but he is suggesting two, three or four possible routes that a victim of a major incident, who may never have had any encounter with any of the services and agencies, has to know and understand. It is very complex. Is the Minister happy to meet between Committee and Report to discuss this? I do not want to detain the Committee with a couple of possible examples, but, thinking about other major incidents, I already have examples I would like to put to the Minister and his officials to try to understand how the system he is proposing would work. At the moment, it seems more of a muddle than the current system.

Lord Roborough: I am of course happy to commit to meeting to discuss this matter, but we are not leaving the victims defenceless in this situation: they will have an independent public advocate, who will help to guide them through all these processes. But I completely agree that we should meet and consult further on this matter.

Baroness Hamwee: My Lords, during the debate on the victims’ code, we discussed the problem that victims are often advised not to undergo any counselling or therapy because that might damage how their evidence is characterised by the defendant’s counsel. I have no idea whether this issue has arisen in connection with major, possibly non-criminal incidents, but I can see that this could become something that makes its way into people’s thinking: “Don’t go for therapy because  you might have to give evidence to a public inquiry, and how would that be perceived?” I just throw that in as another consideration. There may be similar points, not about what victims should do but about things they should not.

Baroness Thornton: I thank the noble Baroness, Lady Hamwee, for throwing that in. The Minister will know that this is a discursive process and this is a probing amendment. Although we will press him on all the different things, I am grateful for the commitment to talk and to continue the dialogue about how we deal with this particular group in the code. On that basis, I beg leave to withdraw my amendment.
Amendment 122 withdrawn.
Amendment 123 not moved.

  
Clause 29: Appointment of standing advocate

Amendment 123A

Lord Wills: Moved by Lord Wills
123A: Clause 29, page 30, line 8, at beginning insert “Within one month of the passing of this Act,”

Lord Wills: My Lords, this group of amendments addresses the appointments, functions and processes for the independent public advocate in different ways. They are all designed to secure the greater independence and effectiveness of the advocate.
Given that it has been almost seven years since the creation of an independent public advocate featured in the 2017 Queen’s Speech, Amendment 123A simply removes any further possibility for the Government to unnecessarily delay the implementation of this post. Amendment 123B ensures that Parliament fulfils its function of scrutiny in respect of the appointment of the independent public advocate. Sadly, as many of your Lordships will be well aware, Ministers cannot always be relied upon to act benignly when scrutiny of their Government’s actions is involved. It is therefore crucial that they be held to account by Parliament in these matters and that Parliament retains a role in the appointment of the independent public advocate.
As the Minister will be aware, the Treasury Select Committee, the Public Accounts Select Committee and the Culture, Media and Sport Select Committee already fulfil this function of approval for some key public appointments, and for good reason. That good reason must surely apply in the case of the independent public advocate. It must be essential that the public and those who need the services of the independent public advocate can have complete faith in the integrity and independence of the advocate, and a parliamentary confirmatory hearing will help to secure that.
Amendment 123C provides an alternative route for the appointment of the independent public advocate and a trigger mechanism for the retrospective appointment of the advocate. Clearly, this would become applicable only in the event that the Secretary of State decided  not to appoint an independent public advocate. I am aware of the Government’s concerns about fettering the freedom of the Secretary of State’s action over the appointment of an advocate and the scope of their powers. In that context, I stress that this amendment creates no statutory fetter on the Secretary of State’s freedom of action. However, it does entrench a parliamentary role for the operation of this position and provides an additional safeguard for the interests of victims.
I spoke on the previous day in Committee about the need for retrospection. As I said then, it seems perverse to exclude from the support of the advocate those to whom the original damage was caused before the passage of the Bill but who have still to secure justice for it and who still suffer the consequence of it, such as those postmasters whose lives were wrecked by the Horizon scandal, and those whose lives were devastated by the transfusion of contaminated blood in the 1970s and 1980s or by nuclear tests in the 1950s and 1960s. This amendment provides a trigger mechanism for such an appointment of the independent public advocate, as it were in retrospection. I envisage that it might come into effect, for example, when the relevant Select Committee had investigated a particular “major incident”, in the language of the Bill, and concluded that victims still suffering the consequences would benefit from the assistance of the independent public advocate. Again, I stress that this would not impose a statutory fetter on the Secretary of State, but it might spur them on to action if they had not already taken it. However, the amendment would require the Secretary of State to justify their decision to Parliament and render them subject to scrutiny of their decision to reject such a recommendation. I hope that the Government might recognise that it is in the interests of victims that any decisions by the Secretary of State in this area should be subject to parliamentary scrutiny. After all, we remain a parliamentary democracy—despite some recent attempts to subvert it.
Amendment 124A is perhaps the most important of this group of amendments that I have tabled, because it entrenches the timely achievement of transparency as a key task of the independent public advocate. The amendment avoids being overly prescriptive about what powers the independent public advocate might require to establish an effective fact-finding inquiry to secure timely transparency for the victims, the bereaved and the wider public, because obviously the circumstances of every major incident will be different. However, this might well include placing the advocate in the position of data controllers, so they would be enabled to see all the relevant documentation and report on it without necessarily being able, under data protection regulations, to publish all the data.
In his letter to Peers, the Minister—the noble and learned Lord, Lord Bellamy—set out the reasons for the Government resisting such powers, and they are worth quoting, because to me they exemplify many of the problems with the Government’s approach. He said that
“a new and competing investigative body would be disruptive, duplicative and risk undermining or prejudicing other investigations which are seeking to establish the truth or assign liability”.
I am afraid these assertions are not borne out by evidence. The role need not compete with other investigations under the terms of this amendment. If the Secretary of State believes that such power would not be in the public interest, nothing in this amendment would force them to grant it. It remains at the Secretary of State’s discretion. However, this amendment forces the Secretary of State to justify such a decision, in respect of the fact that they made it with regard to timeliness, cost, transparency, and the emotional and financial interests of the victims.
It is unclear to me why the Government should resist the obligation to justify their actions with respect to these crucial concerns. The experience of the Hillsborough Independent Panel demonstrates all the advantages of such a process, acting in effect as a triage for other forms of inquiry. It does not mean it is acting in competition with them; it is acting as part of an overall process.
Turning to the detail of the problems of the Government’s approach, I start with the interest of the taxpayer, which I hope is never far from any Government’s mind. I hope I do not need to remind the noble Earl the Minister of the cost of the public inquiries that the Government seem to favour. The Grenfell inquiry has so far cost £170 million. The infected blood inquiry has so far cost £130 million. The Post Office Horizon inquiry has so far cost £22 million. In contrast, the Hillsborough Independent Panel—the replication of which the Government seem determined to resist and which has nevertheless been universally recognised as an exemplarily thorough piece of work—cost a fraction of these sums. The House of Lords Library has struggled to find a precise figure, but it seems clear that it was under £5 million. A cost-effective triage, such as the Hillsborough Independent Panel, could save many millions of pounds down the line.
Even more importantly, there are the interests of victims, those who have been let down and betrayed by the state. I remind the Minister of how long these public inquiries can take. The Grenfell inquiry has so far taken nearly seven years. The infected blood inquiry has so far taken over six years. The Post Office Horizon inquiry has so far taken nearly three years. There is no obvious end in sight for any of these inquiries. In contrast, the Hillsborough Independent Panel took two and a half years from starting work to the publication of its report. That was about events that had taken place over two decades previously, with all the consequent difficulties of research and assessment.
The Minister will be familiar with the adage that justice delayed is justice denied, yet the Government seem determined to resist an obvious way to comply with it in the circumstances. I ask the Minister to consider the plight of those victims, on whose behalf the position of the independent public advocate is being set up. They have suffered directly or indirectly from the loss of loved ones because, in some way, the state that was meant to serve and protect them failed them. They could never have expected that to happen, yet that same state makes them wait not weeks, not months, but years, and sometimes decades, to find out  what has happened. This lack of timeliness—with interminable delays—compounds their grief and suffering and makes any kind of closure even harder than it already is.
I also remind the Minister that, for all their costs to the taxpayer, the length of time they take and the damage that that time does to victims, these public inquiries do not always succeed in their purpose. There was a public inquiry and a scrutiny—in effect, much the same thing—of the Hillsborough disaster, and the Minister will be aware that both failed to get to the truth and win the trust of those most affected by that tragedy. That is why they campaigned for decades to get the justice that they are finally beginning to receive. It took the Hillsborough Independent Panel to do that, yet the Government seem to resist its replication. The amendment would address those issues. Resisting it would be not only wrong but cruel to all those who might benefit from it in the future.
Finally, the Minister, the noble and learned Lord, Lord Bellamy, went on to write:
“It is also true that giving the Independent Public Advocate powers to compel information from public authorities would not then necessarily allow them to disclose this information to victims”.
That weasel adverb “necessarily” is doing a lot of heavy lifting in that claim. Again, the Hillsborough Independent Panel provided a model of how all the relevant information that the state owes to victims can be provided to them—that is the model and process envisioned in the amendment.
I now turn to Amendment 128A. As it stands, the Bill appears to permit the Secretary of State to appoint the independent public advocate but deprive them of the means to exercise their function. I cannot believe that that is what the Government intended, but in any event the amendment will prevent the Government travestying the position of the independent public advocate and give them all the secretarial and other support necessary for them to exercise their functions effectively.
Finally, I turn to Amendment 133ZA. Despite everything I have said in Committee, I have to recognise that the Government are still resistant to these amendments that would improve the agency of victims and produce transparency in a timely manner. This amendment calls for a review of the operation of the independent public advocate after a year,
“with regard to timeliness, cost, transparency and the emotional and financial interests and views of the victims”.
It recognises, as I said, that the Government have not been minded to accept most—or indeed any—of my amendments so far. It is baffling to me why the Government seem so resistant to improvements in timeliness, cost and transparency and, above all, in support for victims and the bereaved that victims themselves are asking for. The Government say that they have their reasons; they are not compelling to me or to many others, but here we are. Recognising that fact, the amendment simply asks the Government to have the courage of their convictions. If they believe that the Bill, as it stands, really is the best way forward for victims and the bereaved, the amendment requires them to put it to the test after a year. Resistance to the amendment will only indicate that the Government do  not, in fact, have confidence that their measures are the best that can be done for victims and the bereaved.
Your Lordships will have noted that the amendment is predicated on the Government accepting some degree of retrospection in the independent public advocate’s activities, as there may not have been a new major incident within the timeframe. But I hope that the Government will have recognised the imperative not to deprive all those who are victims, and who continue to suffer from previous major incidents, of the support that could be offered by the independent public advocate. I refer again, for example, to the postmasters, the victims of contaminated blood transfusions and the victims of nuclear tests. In those circumstances, I was encouraged—I hope not mistakenly—by the Minister, who, on the previous day in Committee, seemed to indicate that he might be open to looking again at that provision. I hope very much that the Government might accept at least this amendment—although I obviously hope that they will accept all my amendments —because it will put their position to the test. I hope they will not resist that.

Baroness Sanderson of Welton: My Lords, I will speak to Amendments 124A and first to 133ZA, which recommends the review that the noble Lord, Lord Wills, just talked about—a review of the way in which the IPA is working once the office is up and running. I am not always a fan of reviews in legislation, but in this instance it does seem to make sense, given that this is such a ground-breaking role.
As the noble Lord, Lord Wills, has already made clear, it is a position that has taken a long time to get off the ground. It is fair to say that officials have grappled with the role and what it will look like in practice. Having originally proposed a panel that would be activated in the event of a disaster, the Government have now agreed on a single standing advocate. This is welcome news. As my noble friend the Minister knows, I think the IPA may need the power to compel evidence, so I firmly agree with Amendment 124A, which would allow the Secretary of State to grant the IPA the ability to establish a fact-finding inquiry, with the right to see all relevant documentation.
The noble Lord, Lord Wills, has done this brilliantly, so I will just quickly add that this is central to the role of the IPA given the dissembling that lies at the heart of pretty much every disaster, as institutions still seek to protect themselves over and above those who have been wronged. I completely agree with the noble Lord’s point that such a power would not put the IPA in competition with others but would be a cost-effective triage. He makes an interesting point about the difference and the fact that perhaps we have not had a repeat of the Hillsborough Independent Panel inquiry. One reason for that comes from victims themselves, which we saw with Lucy Letby: we must have a statutory public inquiry, because that is the only way we can compel witnesses and evidence. As the noble Lord, Lord Wills, has said, we go down the road of these very expensive public inquiries when perhaps, with the powers that he suggests only being switched on by the Secretary of State in the right instance, we could avoid some of that.
To mention them again, although the sub-postmasters are not a group of people I have worked with personally, I watched the programme along with everybody else. I cannot help thinking about that moment when they all said, “Oh, I thought I was the only one. I wrote and they all said that I was the only one”. At that point, there were 200 or 300 of them. If the IPA had existed, could they have gone to the IPA and said, “We’ve formed this group of 300 of us and this has happened to us”? If the IPA had the power to write to the Post Office and say, “Can you please tell me how many complaints you have had about the Horizon system?”, could so much pain and damage have been stopped? The IPA would have had the power to get that answer in a way that they did not because, as usual, the dissembling meant that they could not get to the information.
Along with the noble Lord, Lord Wills, I realise that the Government think otherwise about the power to compel evidence, despite the views of victims, survivors and families—who are all in favour of such a power. For now, I accept that we shall have to agree to disagree, but I will come back to Amendment 133ZA. I hope we might agree that what we have just been talking about all shows just how complex this new role is. It will take some time to work out exactly how the IPA can do its work. Therefore, in this instance a review is a very good idea because we should not underestimate what an important role this is. If you had relatives at Hillsborough, lived in Grenfell Tower, were infected with HIV or hepatitis, or were a sub-postmaster, and had the IPA existed at that point, the IPA was your one chance, the only person in the system entirely there for you.
More widely and more profoundly, perhaps, it is a role that is about building trust between individuals and the state—individuals who have been wronged, and the state. I cannot put it better than the Secretary of State when he announced the IPA just under a year ago. He said that
“although the IPA is first and foremost about doing better by the victims and survivors, it will also be in the wider interests of the public. It will ensure that we achieve a better relationship between public bodies, the Government and the bereaved; that we get better, quicker answers; and that we can learn and act on the lessons from such tragedies more decisively.”—[
The Government are rightly proud of producing the role we have just discussed, but they should be proud only if it is found in practice to be doing the absolute best by victims and fulfilling everything the Secretary of State said on 2 March. To that end, I very much hope that they will support this amendment and consider a review in this instance.
Finally, I have one question for the Minister. When the IPA was announced, I asked the Government to confirm that the families, survivors and victims would be involved in shaping the role, because the previous consultation had been way back in 2018. I was told from the Dispatch Box that families would be involved in the discussion and creation of this new office—I think that was the phrase used. What consultation has taken place since that announcement in March? If he does not have the answer right now—I do not expect him to—will he write to me with the details?

Baroness Hamwee: My Lords, I support the amendments that call for proper support for this new role. It should not need to be spelled out that the IPA will need a budget. I happen to think that he or she should have a budget and discretion as to how best to spend it. I am a little alarmed by Clause 31, which provides that the Secretary of State “may pay” reasonable costs and, quite separately, “may make provision” for secretarial or other support. Should the latter be distinguished from reasonable costs incurred in connection with the exercise of their functions? I think not.
I am particularly prompted to mention this because I learned the other day that the newly appointed—after a period of 22 months—independent anti-slavery commissioner is having her budget reduced on a yearly basis throughout the term of her appointment, by 5% a year over the three years. I know that the two jobs are different positions, but that indicates strongly—and it is very much accepted by people in the sector, including the new commissioner—that the Government are downgrading that role. Do the Government agree on the importance of creating champions, if I may call them that, just to give them a collective noun? They have to make the job possible.

Lord Marks of Henley-on-Thames: My Lords, as the noble Lord, Lord Wills, has explained, of the amendments in this group, Amendments 123A to 123D, 124B, 126A and 126B would perform a number of functions. They would inject urgency into the appointment of the standing advocate; they would give a Select Committee of the House of Commons a prominent role in the selection and appointment of the standing advocate; they would clarify the standing advocate’s role if other advocates were appointed as well; and they would provide that the appointment of additional advocates was to cover for unavailability or to provide additional assistance to the standing advocate. All those amendments would strengthen the statutory requirements and give the standing advocate role more significance and the standing advocate more personal responsibility for the performance of that role.
On Amendment 124A, I fully agree with the noble Lord, Lord Wills, on the need for urgency in establishing inquiries, and agree with all the observations he—and, indeed, the noble Baroness, Lady Sanderson—made about the delays inherent in the present system. The difficulty I see with the amendment as drafted—I would appreciate some clarity on this from the Minister—is the following:
“The standing advocate may request from the Secretary of State all the relevant powers to establish a fact-finding inquiry, including those to see and report on all relevant documentation.”
That would give the standing advocate the power to establish a fact-finding inquiry. My concern is that I am not convinced that establishing a fact-finding inquiry is the role of the standing advocate as envisaged by the Bill. I invite the Minister to explain how he sees the role of the advocate in inquiries and to consider, certainly between now and Report, how the role of arbiter or inquiry establisher is compatible with the role of representing and supporting victims. Is there another route—the noble Lord, Lord Wills, might also be keen to be involved in this discussion—to establishing an independent, quicker, more effective way of producing  inquiries that does not involve the standing advocate, but that also does not involve the length and delay of a full-blown public inquiry in every case?
I also invite clarity from the Minister on how he sees the standing advocate’s role of providing support at inquiries. That is plainly envisaged by Clause 33, but Clause 33(5) permits advocates to support victims’ representatives; it does not deal with acting as victims’ representatives. Clause 33(7) would prevent a person representing victims if the person concerned was under 18—that is perhaps uncontroversial—or if, in so doing, they would be carrying out a legal activity. A legal activity is as defined in Section 12(3) of the Legal Services Act 2007.
It is unclear that representing a victim at an inquiry is a legal activity. Paraphrasing, or at least truncating, the meaning of Section 12(3) of the Legal Services Act 2007, a legal activity is exercising the right of audience, which is not a phrase normally used in representation at an inquiry; the conduct of litigation, which plainly an inquiry is not; offering advice, assistance or representation in connection with the application of the law; or legal dispute resolution. I do not regard any of those activities as equivalent to representing a victim or more than one victim at a public inquiry. I would be interested to know, therefore, how the Government see that role.
I turn now to the point made by the noble Baroness, Lady Sanderson, about the right to see all relevant documents. It seems to me that, whatever the role of the standing advocate, the right to see all relevant documents is central, as is the right to insist on calling for particular witnesses to be cross-examined.
It follows that, with the amendments as phrased, there is a right to make a request to the Secretary of State and the right to a reasoned and timely response to that request, when it concerns seeing documents and calling witnesses. This is a modest, probably overmodest, approach. It seems to me that the standing advocate ought to have an absolutely clear right to call witnesses or to have them called by the inquiry if it is independent, as I suggest it probably should be, so that they can be cross-examined by or on behalf of all parties.
Amendment 133ZA would require a review of the operation of the standing advocate scheme and the appointment of additional advocates six months after passing the Act. I quite agree with the noble Baroness, Lady Sanderson, that such a review is important because this is a complex and new mechanism. I suggest that six months after passing the Act may be too soon, because it is unclear how many major incidents would be declared in the first six months, and it is certainly unclear how long it would take to see how the system was working in practice. I think we would be looking at a period of at least two years or thereabouts before we have an effective review. However, I agree that a review of what is, in essence, a new system should be incorporated into the statutory scheme.
Finally, Amendment 128A, to which I have added my name, is the amendment on which my noble friend Lady Hamwee spoke. It seeks proper secretarial support and other resourcing for the standing advocate. The first point is that appropriate support is essential to enable the advocate’s role to be performed effectively.  An advocate without a proper budget quite simply cannot do the job, but there is a further, very important point about independence. It is crucial that this advocate scheme acts independently. Without statutorily guaranteed resourcing, an appointed advocate would be dependent on the Secretary of State for the resources needed to carry out the job which they are charged to perform. That is entirely unsuitable.
There are amendments about the termination of advocates’ appointments, and the spirit of independence being threatened by the present drafting of the Bill, which we will come to in a later group, whereby the Secretary of State can remove an advocate for reasons that seem appropriate to him or her. We are all for the independence of advocates, but their role needs clarification and a review would be helpful.

Lord Ponsonby of Shulbrede: My Lords, I congratulate my noble friend on pursuing this matter over many years. I know that the noble Baroness, Lady Sanderson, has been at his side for most, if not all, of those years. My noble friend introduced this group comprehensively, so I will not go through the amendments in detail.
In essence, the first part of this group of amendments injects a greater urgency into the whole process, specifies roles and contexts of roles, and strengthens and increases the significance of those roles. As was self-evident, my noble friend is frustrated by the failure to actually implement this new role.
My noble friend went on to speak at some length about Amendment 124A, which would give the standing advocate powers to establish a fact-finding hearing. In talking about the necessity of that, he said that this was one of the most important amendments in the group. The figures he gave for the costs and delays in the various inquiries that we have had over the last couple of decades were very stark. I was not aware of the contrast between the way that the Hillsborough inquiry was conducted and the others that he mentioned.
I think all noble Lords who spoke on this group mentioned Amendment 133ZA, which was added to this group later and asks for a review. My noble friend said that this is really his fallback position, given that the Government object to various elements of the first amendments in this group. From the tone of my noble friend, the noble Baronesses, Lady Sanderson and Lady Hamwee, and the noble Lord, Lord Marks, I think this is really the minimum the Government could do. My noble friend acknowledged that this suggests an element of retrospectivity, and the noble Lord, Lord Marks, said that six months may be too short a period. Accepting those two points—the review may need to be later and retrospectivity should be introduced—the underlying principle of the review is the very least that should be put in place to see whether this new role is working as effectively as we all want.
Given those comments, I will listen to the Minister with interest.

Earl Howe: My Lords, as the noble Lord, Lord Wills, so ably explained, this group of amendments covers a number of issues: the appointment of the standing advocate, the function of the standing advocate, the appointment of additional advocates, and a review of the scheme’s effectiveness.
I will deal first with the noble Lord’s Amendment 123A, which would set a duty on the Secretary of State to appoint a standing advocate within one month of Royal Assent. The Government entirely share the noble Lord’s desire for the standing advocate to be in place as soon as possible once the Bill becomes law. However, we have a few concerns about the proposed amendment.
First, Part 2 of the Bill will be commenced by regulations made by the Secretary of State. That is the appropriate commencement mechanism for this type of provision. Secondly, it has always been our intention to run a fair and open competition for the office. Obviously, there is due process involved in that, which necessarily occupies a certain amount of time. Thirdly, as I hope the noble Lord will appreciate, the Government will want to carry out all relevant due diligence prior to making the appointment, and this process will also take a little time.
If the Government were to proceed as the noble Lord suggested, it would necessitate a direct appointment by Ministers. Of course, that is theoretically possible, but such appointments are normally used to address a short-term need and are typically for posts that last 12 to 18 months or something of that sort. This point also relates to the noble Lord’s other amendments on the appointment process, which would require the Secretary of State to obtain the approval of a relevant Select Committee and to hold a Motion for resolution before making the appointment, or to give an Oral Statement if it is refused.
It may help if I outline the Government’s current intentions for the recruitment process. Given the nature of the role and the tireless efforts and campaigning of so many people—not least the noble Lord, but also other parliamentarians, Bishop James Jones and, in particular, the Hillsborough victims and their families—for the establishment of the IPA, it is of the utmost importance that we get this right. On that basis, the Government intend to recruit the standing advocate through the public appointments process.
To remind noble Lords, theprocess is operated under the Governance Code on Public Appointments and is regulated by the Commissioner for Public Appointments. The scheme will ensure that the competition for the role is fair, open and transparent. It will provide the opportunity for anyone with the appropriate skills and experience to apply and help to ensure that we will have as a diverse a range of candidates as possible to choose from.
I would also like to reassure the noble Lord, Lord Wills, that the public appointments process already provides the opportunity for the appropriate Select Committee to interview a proposed candidate. If it would be helpful, I am open to discussing this point further with the noble Lord. Indeed, it is within the discretion of Select Committees to encourage potential candidates to apply. They can also hold a statutory officeholder to account once in post, as the noble Lord well knows.  Additionally, we have also taken the step of ensuring, within this legislation, that the IPA will be subject to the scrutiny of the Parliamentary and Health Service Ombudsman, which adds a further layer of accountability. Taken together with the pre-appointment scrutiny that the public appointments process already affords Select Committees, it is the Government’s belief that no changes to the process are required at this time.
I now turn to Amendments 123D and 124B. These add a specific mention so that the clauses apply only when additional advocates are appointed. I do not think these amendments are necessary; the legislation as drafted already covers the point the noble Lord is trying to make. Ultimately, the clauses in question are intended to allow the standing advocate to provide a leadership function to any additional advocates appointed alongside them. Where no additional advocates are appointed, the leadership function would not be needed or executed. These amendments are therefore not necessary.
Amendment 124A in the name of the noble Lord, Lord Wills, seeks to grant the standing advocate the right to request all the relevant powers to establish an inquiry; to impose a duty on the Secretary of State to answer any requests from the standing advocate within two weeks; to impose a duty on the Secretary of State to make an Oral Statement to the other place should they refuse any request; and to impose a duty on the Secretary of State to demonstrate that they have had regard to various factors while considering the public interest. The noble Lord, Lord Marks, asked me to clarify the Government’s policy intention in this area. The Government have always been clear that the purpose of the IPA scheme is to support victims of major incidents, rather than undertaking their own independent investigations. Our position remains unchanged. This amendment would run counter to the policy intention.
The noble Lord, Lord Wills, quoted the words of my noble and learned friend Lord Bellamy in explaining the rationale for the Government’s approach. Briefly, the Government are of this view because they believe that giving the IPA investigatory powers could conflict with the work of other investigative authorities and risks duplicating or undermining them. I acknowledge all that the noble Lord said about the intended effect of his amendment. I am sure that he will know that, in recognition of the desire here and in the other place to see the IPA having a greater role in reviews, the Government announced additional functions for the standing advocate. The standing advocate’s functions, as set out in Clause 29, give it the ability to advise the Government on the most appropriate form of review mechanism in relation to a major incident and what the scope of that review should be. It will also have a vital role in relaying the views of victims in relation to this decision. The Government believe that this is the most appropriate form of involvement for an advocate to add value, without duplicating or undermining other processes.
While I obviously regret that the noble Lord and the Government are not at one on this issue, I hope he will welcome the shift that the Government have made. I did not close my ears to what he said; I also listened carefully to my noble friend Lady Sanderson. I would  of course be happy to discuss this further with him and my noble friend in the coming weeks, as I know would my noble and learned friend Lord Bellamy. For now, I hope that the noble Lord will not feel the need to move the amendment.
My noble friend Lady Sanderson asked me what engagement has taken place with victims in shaping the role of the advocate. I can tell her that, since March, we have written to victims and given them an inbox, and we are happy to keep those conversations going while operationalisation continues. We have also met the representatives of the Grenfell and Hillsborough families. Further to that, we wrote to the victims of Hillsborough, Grenfell and Manchester at each stage of the Bill where amendments were being made, and very much welcomed their engagement.
On the question of whether, if Horizon occurred today, the victims could write to the IPA and ask it to look into the matter, the advocate would be able to ask questions of public authorities, such as the Post Office, and could advise the Government if it became aware of a developing situation. However, it could not currently represent Horizon victims, because this would be retrospective. If an IPA had been in place at the time that that scandal emerged, then they could have spoken to it.
On the question of whether the advocate could support victims at inquiries, at statutory inquiries the chair is able to make provision for legal representation for core participants. The advocate would not represent victims in a legal capacity at either inquests or inquiries.
The noble Baroness, Lady Hamwee, asked about—

Lord Marks of Henley-on-Thames: I am sorry to intervene on the noble Earl. I may be an amendment or two later than the point in the speech which I address, but is he sure that Horizon would count as a major incident, bearing in mind the definition of major incident in Clause 28(2), where a major incident
“means an incident that … occurs in England or Wales after this section comes into force, … causes the death of, or serious harm to, a significant number of individuals, and … is declared … by the Secretary of State to be a major incident for the purposes of this Part”?
I can see that Horizon caused serious financial harm, but is that the harm envisaged? I am not sure that it is. Would the Secretary of State be entitled to declare a major incident in the Horizon circumstances?

Earl Howe: I think we have already debated the latitude that the Secretary of State enjoys in interpreting the word “significant” when we debated the previous group of amendments. The noble Lord has asked a very fair question; I perhaps should not have rushed into an answer to the question I was given on Horizon in particular. It might be wise if, rather than go further at the Dispatch Box, I wrote to the noble Lord about the Horizon case specifically.
The noble Baroness, Lady Hamwee, asked about the IPA’s secretarial and admin support; that was also touched on by the noble Lord, Lord Marks. We will be coming to that in the fourth group of amendments, so if they will allow, we can defer the point to that debate, which my noble friend Lord Roborough will be responding to.
Moving on, the noble Lord’s Amendments 126A and 126B seek to ensure additional advocates are deployed only if the standing advocate is unavailable or requires support. It is already the Government’s intention that the standing advocate is deployed by default. We acknowledge that the standing advocate will be the most recognisable, and will have developed and accumulated knowledge, experience and relationships with stakeholders over time. However, there are circumstances, such as where a major incident has occurred, that more specialised knowledge or skills may be required, or, as the noble Lord has outlined, where the standing advocate is not available. The Government believe that the Bill as drafted allows the necessary flexibility to ensure that appointments are made in a timely manner following a major incident and that the most appropriate person is appointed. All advocates are subject to the same scrutiny once appointed. Therefore, while I understand and am sympathetic to the aims of the noble Lord’s amendments, the Government believe that the process they will follow in appointing advocates is fair and robust.
Lastly, I turn to the noble Lord’s Amendment 133ZA, which would place an obligation on the Secretary of State to commission a review of the operation and effectiveness of an advocate appointed in respect of a major incident, to lay the outcome of this review before Parliament within six months of this Act passing, and to implement any recommendations made for improving their effectiveness within six months of the review’s publication. Perhaps at this point I could express my thanks to the noble Lord for his engagement on these issues with my noble and learned friend Lord Bellamy and me the week before last. The Government understand and appreciate the intention behind this amendment. This new statutory office that we are creating is novel and the first of its kind. It is completely right that we monitor and evaluate new initiatives to ensure that they achieve their purpose and deliver for the end-user—in this case, victims of major incidents. The noble Lord spoke very powerfully. I believe my noble and learned friend Lord Bellamy was clear that the way that we do this is something that the Government are willing to consider further. I know that my noble and learned friend would be happy to work with the noble Lord on the matter, ahead of the next stage in this Bill’s passage, if he would find that helpful.

Lord Wills: My Lords, I am grateful to everyone who has spoken to this group of amendments. I think everyone, with the exception of the Minister, has spoken broadly in support of them. As always, I am particularly grateful to the Minister for his extremely courteous and open response to quite a weighty volume of amendments which covered quite a lot of ground.
On the basic question of further engagement with Ministers and officials, I would be delighted. I am extremely grateful for the offer, and I hope we can arrange something in the very near future, in good time before Report, to deal with some of these questions. Quite a lot of them are details of drafting, and I may well have misunderstood the intent of the drafting. It may be that some further clarification is needed. These are  details in the drafting of the amendments, and I am very grateful to move forward on them. The review question, dealt with in Amendment 133ZA, is similarly complex, and I am glad that, when we spoke a few days ago, the Minister and the noble and learned Lord, Lord Bellamy, seemed to welcome the principle. It would be good if we could clarify that and bolt it down to something practical that will work.
Amendment 124A is on the crucial question of fact-finding and transparency. I think the noble Lord, Lord Marks, referred to it as a modest amendment. If I had any hope of the Government accepting something more radical, I would have been far less modest, but I do not, I am afraid. The Minister’s response confirmed my worries about this. He repeated what has always been the Government’s position: that the role of the advocate is essentially a pastoral one—that advising the Secretary of State, as the Minister just described, is really only a baby step away from what is essentially a pastoral role. That really is not sufficient. Merely reiterating the Government’s purpose does not justify the purpose; it only shows that, for some reason I really do not understand—I really do not understand it, because I can see no practical benefit of it at all, to anybody—the Government are resistant to giving the public advocate further powers.
It is not a question of defensiveness over a particular issue. As the Minister said, the Bill is not retrospective at the moment, although I welcome his indication that he may be able to introduce that element of retrospection. I am frankly baffled. Timeliness is so important for victims who are suffering unimaginable trauma and grief, and all of whom, in their different ways, are seeking closure, because they fail to understand what has happened to their loved ones, out of a clear blue sky, and are given no explanation for why what happened has happened. As the magisterial report on Hillsborough by Bishop James, the former Bishop of Liverpool, shows, these delays allow those in power to construct false narratives about what happened. We saw that graphically at Hillsborough, when the Sun newspaper and the former Prime Minister told lies about football fans who lost their lives because of the negligence of the police.

Earl Howe: I meant to respond to the very pertinent points the noble Lord made on the cost and duration of public inquiries. He is, of course, quite right. This is a matter of concern. It is not for a trivial reason that your Lordships’ House is looking at this very issue in one of its special committees at the moment. However, one of the advantages, as we see it, of the IPA will be that he will be able to recommend to the Secretary of State a non-statutory route to inquiring or looking into incidents. I am sure that his or her voice in making such a recommendation will, for entirely the reasons that the noble Lord cites, be a very powerful lever in the process.

Lord Wills: I am grateful to the Minister; he pre-empted me, as he could see where I was going to go next with this. He is quite right that the Inquiries Act 2005 is increasingly widely recognised as clunky and in need of revision, but that is not for now. That is inevitably going to be a lengthy process, and certainly for another Parliament, but we have this Bill in front of us.
Giving the public advocate power to advise the Secretary of State has no teeth at all. We know how Ministers take advice: sometimes they do and sometimes they do not. In the meantime, the victims, for whom this Bill is intended, go on suffering. While the Secretary of State decides and deliberates and moves on, is sacked, reshuffled and all the rest of it, the victims go on suffering the agony of not knowing what has happened to their loved ones, while over and again those in power use taxpayers’ money to construct false narratives. There is no end in sight to that in this Bill.
We have the opportunity to give real power to the independent public advocate, speaking on behalf of victims who have been left abandoned, over and again, for years and decades. The person who is meant to represent them “may” be given the power to advise the Secretary of State, who can then do what he or she likes, with no accountability—nothing. I urge the Government to look again at this.
Notwithstanding the obvious problems with public inquiries, here is a chance to do something. We have the model. The Hillsborough Independent Panel, which was set up by a Labour Government and championed by a Conservative Home Secretary and Prime Minister in the right honourable Theresa May MP, with cross-party support, is universally accepted as a model of how these things can operate. Yet the Government persist in rejecting the possibility for the independent public advocate to set up something like that in future.
Why? We know that it can save money. We know that it can produce a timely explanation of what happened, which is of incalculable benefit to victims. Yet the Government go on resisting it. Timeliness, cost benefits and transparency; what is not to love about those virtues? Yet the Government resist it. As I say, I am baffled. We will return to these issues on Report. I am grateful to everyone, and particularly to the Minister, for his approach to all this. I beg leave to withdraw the amendment.
Amendment 123A withdrawn.
Amendments 123B to 123D not moved.

Amendment 124

Baroness Thornton: Moved by Baroness Thornton
124: Clause 29, page 30, line 16, at end insert—“(2A) When carrying out its functions under subsection (2)(a) in relation to a specific major incident, the standing advocate must seek, and relay to the Secretary of State, the views of victims of that incident concerning—(a) the type of review or inquiry held into the incident, and(b) their treatment by public authorities in response to the major incident.”Member's explanatory statementThis amendment would require the standing advocate to communicate the views of the victims of a major incident to the Secretary of State.

Baroness Thornton: My Lords, in moving Amendment 124 I will speak to Amendments 125 and 128 in the name of my noble friend Lord Ponsonby. We are now, of course, continuing our discussion about major incidents and the role of the advocate.
The reason for Amendment 124 is that the press release introducing the standing advocate position states that the role will
“give victims a voice when decisions are made about the type of review or inquiry to be held into a disaster”.
However, there is no requirement in the Bill for the standing advocate to directly consider the views of victims of a major incident when advising the Secretary of State. The Bill provides for an individual other than the standing advocate to be appointed as the advocate in respect of a major incident. In these circumstances in particular, it is not clear from the Bill how and whether the views of victims will be communicated to either the standing advocate or the Secretary of State. That is the situation that Amendment 124 seeks to rectify. It would require the standing advocate to communicate directly to the Secretary of State the views of victims in relation to the type of review or inquiry to be held into the incident and their treatment by public authorities.
I turn now to Amendment 125. The Government have said that the appointment of advocates for individual major incidents will allow for expert insight from, for instance, community leaders who hold the confidence of victims. There is no requirement to consider the views of the community affected by the incident when deciding whether and who to appoint as a specialist advocate in relation to a specific incident. We appreciate that the need for rapid deployment of an advocate following a major incident—which noble Lords have been talking about already—may make it difficult to seek the views of victims before appointing an advocate in respect of that incident. However, once an advocate has been appointed, the Secretary of State should seek the views of victims as to whether to appoint an additional specialist advocate and who to appoint. This is what Amendment 125 in the name of my noble friend seeks to do.
Amendment 128 would require the Secretary of State to consider the views of the victims of an incident before making a decision to terminate the appointment of an advocate appointed in respect of that incident.
This suite of amendments strengthens the role of victims, which is what we are seeking to do in this Bill. I beg to move.

Baroness Brinton: My Lords, I thank the noble Lord, Lord Ponsonby, for laying these amendments and the noble Baroness, Lady Thornton, for introducing them. After the last group, we continue to delve into the role of standing advocates. Once again, the lack of a victims’ code for those major incidents not deemed to be criminal, or not obviously criminal, means that the voice of the victim may not be heard.
One would hope that any standing advocate would seek and relay to the Secretary of State the views of the victims, but it is not evident from the Bill as published exactly how that would happen. These amendments create the golden thread that ensures that a standing advocate must do that, and that the Secretary of State, before they terminate the appointment of an advocate, must consider the views of the victims of a major incident. For example, there might be a conflict of interest with a future Government who are  unhappy about the direction in which a standing advocate is going. The standing advocate might think that what the victims are saying goes beyond what the Government had hoped, and there might be a push to remove the standing advocate. Under this amendment, the standing advocate would be able to produce the evidence brought to him or her from the victims to say why the matter should be taken seriously. At the moment, there is no such structure to do that.
We know from other appointments made perhaps a bit hastily, without thought or understanding of the views of victims, that this can cause a high level of distrust in the proceedings. I am citing these examples not to raise the detail of them, and I will not name the people involved, but to make the point about what can happen when a Government appoints somebody to chair an inquiry and then this goes wrong. In the past, IICSA hit problems not just over the appointment of the chair—with two chairs being appointed and standing down due to their apparent closeness to the individuals or establishments being investigated—but over victims’ concerns about the scope of the inquiry. Much more recently—indeed, just last week the Minister and I had a conversation privately about this—the Government announced the new chair of the contaminated blood compensation technical panel. Within two days, victims and their families had raised concerns about them and whether they would be truly independent. Let me be very clear that I am not arguing the detail of any of these appointments. My issue is about process and making sure that the views of victims are fed up and down through the system, so that it is well evidenced. This would, I hope, reduce problems with some appointments in the future.
Can the Minister say exactly why the Bill does not currently propose that the advocate would formally take the views of the victims on board and pass them up to the Secretary of State? That would help us to understand, in the context of the debates on the previous two groups, the whole role of the standing advocate, where the victims stand and how their voices are heard.

Baroness Newlove: My Lords, I have been happy to sit and listen as we went through the rest of the Bill, but I totally support these amendments. To not have to listen to the victim’s voice beggars belief. The whole point of having an advocate for a major incident is so that the views can be heard. I agree that, by not asking the victim’s point of view, this feels very much like lip service and an insult to the victims who are going through a horrific trauma. Are we not going to learn anything from Hillsborough, Grenfell and the Manchester Arena? This will even add fuel to the fire. I totally agree with everything that has been said. It is very important that the voices of victims are heard, right through this, when reporting to the Secretary of State.

Lord Wills: My Lords, I rise briefly—the Minister will be relieved to hear—to support these amendments. What is important about them is that they would put on a statutory basis that the views of the victims will be communicated to the Secretary of  State. As I have already said at some length, we need to do more and give more teeth to the powers of the independent public advocate, but this is a good step forward. I hope that the Government can accept these amendments, which really are not contentious.

Lord Marks of Henley-on-Thames: My Lords, this group concerns the obtaining of the views of victims by the standing advocate and their being taken into account, or relayed to the Secretary of State so that they can be taken into account. The central point was that made by the noble Baroness, Lady Newlove. If victims of major incidents are to be given a voice and that voice is to be heard, they need, under this scheme, the standing advocate to be that voice—a voice that co-ordinates and articulates the victims’ response. It will often be a joint or combined voice and the stronger for that.
Under Amendment 124, the type of review or inquiry held would be the subject of the views that must be obtained and relayed. It is a matter on which the views of victims are strongly held. They are often views that are in conflict with the views of the Government. That is a central point about independence.
The next point under this amendment is their views on
“their treatment by public authorities in response to the major incident”.
Again, this is an area of not invariable but regular conflict between victims and government. The questions that arise are, “Was enough done to avoid the incident?”, “Was what was done done in time?”, and “Were sufficient resources devoted to relief and recovery after the incident?”. All those are crucial issues on which the voice of victims needs to be independently heard and taken into account.
Amendment 125 concerns the appointment of additional advocates and says the Secretary of State must seek victims’ views on whether to appoint additional advocates and whom to appoint. Again, that is a requirement that is plainly right, because the identity of the advocate and the appointment of additional advocates matter to victims, who are extremely concerned to know that the investigation and any inquiries are going to be properly carried out.
Finally, the views of the victims to be taken into account include the views that they express before the termination of an appointment of an advocate. Again, that is self-evidently right. We have in a later group an amendment tabled by the noble and learned Lord, Lord Hope of Craighead, removing the right of the Secretary of State to remove the standing advocate on such grounds as he thinks appropriate. I put my name to that. That is an important amendment that we will address when it comes, but it goes hand in hand with this amendment because the purpose of both reflects the reality that inquiries into major incidents may cast light on failings of government or organs of government that may cause the Government embarrassment.
One of the chief virtues of the independent public advocate system proposed in this Bill is precisely its independence of government. It is therefore essential that an advocate appointed to represent victims’ interests should be clear and free to carry out those functions fearlessly. If that involves criticism of government or  individual Ministers, those criticisms should be made and investigated. The views of victims on the termination of an advocate’s appointment will therefore be central to that process. They should be central to any consideration of the termination of an advocate’s employment. That should not be left to the Secretary of State without regard to the views of victims.

Earl Howe: My Lords, I express my thanks to the noble Baroness, Lady Thornton, and the noble Lord, Lord Ponsonby, for these amendments, which bring us to an important dimension of any major disaster or incident: the need to give families a voice in decisions about the support they receive. I have a great deal of sympathy with the aims of these amendments. I will take them in turn.
Amendment 124 would require the standing advocate to obtain the views of victims of major incidents regarding any review or inquiry held into the incident and their treatment by public authorities, and then communicate those views to the Secretary of State. Let me say immediately that there is no disagreement here between the noble Baroness and the Government as regards the desired outcome. We agree that an important function of the standing advocate will be to champion victims’ voices to the Government and facilitate better engagement between them and government in the aftermath of a major incident. We agree that part of this involves the standing advocate understanding the views of victims and relaying them to the Secretary of State.
It is the Government’s intention that through Clause 29(2)(a) the advocate will communicate the views of victims of a major incident to the Secretary of State. This could include their views regarding any government-initiated review or inquiry into the major incident and their treatment by public authorities. This will provide victims with agency in the process, which is vital. It is therefore a matter of the best way to deliver this policy. The Government’s position is that it is best achieved without the Bill being overly prescriptive, and with Clause 29(2)(a) providing the foundation. A particular advantage of this approach is that the standing advocate would be able to advise on the full range of review mechanisms, including non-statutory inquiries—as I said a while ago to the noble Lord, Lord Wills—which by their nature cannot be specified in legislation. These are valuable options and can be very successful. The Hillsborough Independent Panel has already been mentioned as a good example.
The noble Lord’s Amendment 125 would require the Secretary of State to consider the views of victims before making the appointment of additional advocates. The intention behind the appointment of additional advocates has always been to prevent a single advocate being overwhelmed, or to ensure where necessary the specialist knowledge needed to provide swift and tailored support to victims. One of the key functions of the standing advocate, as outlined in Clause 29, will be to advise the Secretary of State as to the interests of victims, and the Government would consider this to include advice on whether additional advocates are needed and who may be suitable to appoint. This advice could include the views of victims which they had gathered.
Furthermore, as the Secretary of State has already committed, we will publish a policy statement that will give additional detail about the factors the Secretary of State will consider when appointing additional advocates, including the needs of victims. We believe this to be a better and more flexible approach to ensure that additional advocates can be deployed swiftly when needed. I am concerned that if we were to proceed as the noble Lord suggests with this amendment, a consultation process with the victims would be required prior to any further advocates being appointed. A consultation has the potential to unduly delay the appointment of further advocates and reduce the agility of this scheme to react to the developing situation. Furthermore, the last thing that we would wish to impose on victims during their grief is an additional bureaucratic consultation process.
I come lastly to the noble Lord’s similar Amendment 128, which says that the Secretary of State must consider the views of victims before an advocate’s appointment is terminated. There are a few scenarios in which we imagine that the Secretary of State will use his or her discretion to determine the appointment of an advocate using this power. I will speak to this in more detail in response to the amendment from the noble and learned Lord, Lord Hope, in a later grouping. However, I believe it would be helpful to briefly summarise those scenarios.
First, should additional advocates be appointed, it is right that the Secretary of State has the ability to scale down the number of advocates should the need no longer exist when the peak of activity is over. Secondly, the Government have always been clear that we will prioritise rapid appointment of an advocate following a major incident to ensure that victims are supported from an early stage. However, it may be necessary, following a greater understanding of the developing needs of the victims, or conversely the capacity of an advocate, to substitute one advocate for another. Thirdly, this power may be used to replace an advocate who does not command the confidence of the victims. I hope that those explanations are helpful to reassure the noble Baroness as to the intent behind this provision.
Lastly, as with the noble Baroness’s Amendment 125, I am concerned that, should the Secretary of State be required to carry out a consultation process with the victims, that would severely cut across the ability of the scheme to be flexible and adapt quickly to changing demands.
I believe that victim agency—if I may use that word again—is important, and that has come through strongly during the passage of the Bill, not least in another place. While the amendments serve as a reminder of that principle, I do not believe they are necessary.

Baroness Thornton: My Lords, I thank the Minister for that explanation. I thank the noble Baronesses, Lady Brinton and Lady Newlove, the noble Lord, Lord Marks, and my noble friend Lord Wills for their support for this small group of amendments. The Minister is right that we have no disagreement about the outcomes we wish to see at the end of this. Our concern  is that giving a voice to victims in major incidents is so important that it needs to be explicitly mentioned in the Bill.
I accept that Clause 29(2)(a) does go some way, but it does not actually say that the job of the special advocate is that they have to talk to the victims. I listened to hear whether the Minister would say something about guidance or statutory instruments that might say that, because obviously that would help us with this issue. Certainly, a policy statement would be very welcome.
The question of the confidence that victims or the Secretary of State would or would not have in the special advocate is one of great sensitivity. It could be that the special advocate was giving the Government a very hard time and they may not be enjoying that, and we need to make sure that that person is protected by the statute under those circumstances. However, we have made some progress in opening up this discussion, which I know we are going to follow through in the next group of amendments. I beg leave to withdraw the amendment.
Amendment 124 withdrawn.
Amendments 124A to 125 not moved.
Clause 29 agreed.

  
Clause 30: Appointment of advocates in respect of major incidents
  

Amendments 126 to 126B not moved.
Clause 30 agreed.

  
Clause 31: Terms of appointment

Amendment 127

Lord Hope of Craighead: Moved by Lord Hope of Craighead
127: Clause 31, page 31, line 20, leave out “on such grounds as the Secretary of State considers appropriate” and insert “if the advocate is unfit or unable to fulfil their functions”

Lord Hope of Craighead: My Lords, a good deal has been said about this amendment already in one way or another before I have got to my feet to introduce it.
Perhas I might begin with a bit of a preamble. I think I can take it as common ground across the Committee that the advocate appointed in respect of major incidents must be independent—that is, independent of the Secretary of State. The phrase “independent public advocate” has been used several times today from the Benches opposite, and I think the Minister used the expression “IPA”. Although he did not actually express the word “independent” as such, IPA means “independent public advocate”, so I take that as an indication that “independent” is agreed as a proper and necessary qualification of the advocate that we are talking about.
I think I am right in saying that it is a curious feature that “independent” does not actually appear in any of the clauses in this part, but it does appear in the contents. When the list of contents comes to Clause 33, it refers to “an independent public advocate”, so there is some basis in the text of the Bill for using that expression. That is why I think I can take it as secure common ground for what I am about to say that independence is a necessary qualification for the advocate.
My amendment seeks to address the phrase
“on such grounds as the Secretary of State considers appropriate”
in Clause 31(2) referring to the termination of the appointment of the advocate. As I read the clause, it seems to open the ability of the Secretary of State to terminate the appointment very widely indeed. With my amendment I am seeking to limit the grounds, in the interests of clarity, to situations where the advocate is either unfit or unable to fulfil the functions of the advocate.
I cannot claim much originality for the amendment because it derives from a report on the Bill that was published on 18 January this year by the Constitution Committee, of which I was then a member. The committee suggested that the independence of the advocate might be better protected if the words in my amendment were to be substituted. The committee refers by way of an example to their use with regard to similar appointments, particularly the appointment of a Victims’ Commissioner, under the now repealed Section 48 of the Domestic Violence, Crimes and Victims Act 2004, where that phrase was used. That particular provision has been repealed. I am not quite sure where it is now, although I am sure it exists somewhere, but the fact it was there gives some precedent for the phraseology that I am putting forward in my amendment.
To come back to the principle itself, the principle that the advocate must be independent if he or she is to perform the functions set out in Clauses 33 and 35 lies at the heart of what my amendment is all about. It is also true of Amendment 129 in the name of the noble Lord, Lord Ponsonby of Shulbrede. I refer the Committee to the phrase that he includes in that amendment, which is
“must be independent with respect to its functioning and decision-making processes, and discharge of its statutory duties”.
Although I did not add my name to the noble Lord’s amendment, I offer it my full support because it strikes at the very point that I am seeking to make and it has the great merit of introducing the word “independent” into this part of the Bill for the first time, which takes the matter a significant step forward.
The point is that the role of the advocates that the Bill is referring to in Part 2 is to represent the interests of the people who need them, not those of the Secretary of State. Clause 33(3), for example, states that an advocate appointed in respect of a major incident may provide such support to victims of the incident in relation to an investigation by a public authority
“as the advocate considers appropriate”.
Clause 33(4) provides that such support may include
“helping victims understand the actions of public authorities … communicating with public authorities”
on their behalf, and
“assisting victims to access documents or other information in relation to an investigation, inquest or inquiry”.
The point was made earlier that, if the advocate is to engage in encouraging and assisting victims to access documents, independence is rather important to be able to carry out that function to its proper degree.
Then there is the reporting function in Clause 35. Reference is made here to the advocate’s opinions as to the treatment of victims in the course of an investigation, inquest or inquiry, and
“such matters as the advocate considers relevant”
to the major incident. I submit it is essential, if the advocate is to fulfil the functions set out in these clauses, that he or she should be free to exercise his or her own judgment without looking over his or her shoulder to see whether the Secretary of State likes or approves of what they are doing. There is a risk of a conflict of interest if the appointment is terminable on whatever grounds the Secretary of State considers appropriate.
I listened with some care to what the noble Earl said at the end of the last group for a hint as to what the objection to my amendment might be. He suggested that the Secretary of State may wish to limit the number of advocates or, for some other reason, move the appointments around, and so on. There is nothing sinister in this, it is simply a matter of proper organisation of the resources. I take that point, but it seems to me that the phrase in the clause is so wide that it opens the door to the accusation that it is actually at risk of undermining the independence of the advocate. It is an invitation, or it leaves it open to the Secretary of State, to terminate the appointment simply because the Secretary of State is dissatisfied or objects in some way to what the advocate is doing. That is the very last thing one would want if the advocate is to be truly independent.
Of course, I do not suggest that the formula I have put forward is the last word on this matter. It may be that the phraseology to which I draw attention could be limited in some way to remove the objection to which my amendment is primarily addressed. But I think I have said enough to enable the Minister to understand the point I am making. I hope he will give careful consideration to amending Clause 31(2), if not in the way I have suggested, at least in some other way to limit the breadth of the phraseology. I beg to move.

Lord Ponsonby of Shulbrede: My Lords, I shall speak first to the two amendments in my name. Amendment 29 states:
“During their appointment, an advocate may sit within the Ministry of Justice for administrative purposes, but must be independent with respect to its functioning and decision-making processes, and discharge of its statutory duties”.
The purpose of this probing amendment is to seek clarification of the function and operational independence of the advocate.
Amendment 132 would remove the power of the Secretary of State to issue guidance to advocates appointed in respect of major incidents and give this power instead to the standing advocate. It states:
“The standing advocate may issue guidance as to the matters to which other advocates appointed in respect of a major incident must have regard to in exercising their functions”.
The noble and learned Lord, Lord Hope, spoke to his Amendment 127. In a sense, there is an overlapping theme between this short group and the previous one and, indeed, other matters that have been discussed in Committee. That overall theme is bolstering the independence of the public advocate. I take the noble and learned Lord’s point regarding Amendment 129—I must admit I had not really appreciated it—that this is the first time “independent” appears in this part of the Bill. That is another example of bolstering the independence of the public advocate and the role itself.
In a previous group, the noble Lord, Lord Marks, spoke about putting the financial support for the IPA in the Bill. That too is a way of bolstering support, giving the advocate independence from the Secretary of State, so that the IPA is not constantly looking over his shoulder in terms of what the Secretary of State’s views might be. I too take the Minister’s point, made at the end of the previous group, that there may be practical reasons why the Secretary of State wants to move public advocates around. As the noble and learned Lord, Lord Hope, said, there is nothing sinister about that. Nevertheless, this suite of amendments is all about bolstering the independence of the IPA and trying to integrate the victims’ views into the process as far as is practicable. As was said when we debated the importance of review in the previous group, the way in which this new position is managed and the roles taken on may evolve over time.
I am hoping to hear from the Minister that the Government are sympathetic to the overall thrust of the amendments on independence of operation and making sure that victims’ views are represented at every opportunity as this role evolves.

Lord Thomas of Cwmgiedd: I support the amendment of the noble and learned Lord, Lord Hope. There can be no disputing that independence is key, and it would be very sensible if the Bill was slightly amended to refer to the independent standing advocate, or something of that kind. Independence not being in dispute, the issue is how to safeguard it. Normally, independence is achieved by three things: the first is a process of appointment, which we have already discussed; the second is the provision of resources—again, that has been raised but I am not sure whether it has been entirely dealt with; the third, and most critical, is removal. It seems to me that that is what this amendment is concerned with.
There are two ways of removing to ensure independence: one is to specify the grounds in the Bill, while the other is to derive an independent process. One or the other will work. There are all kinds of processes, such as an independent parliamentary process or an independent tribunal. But bearing in mind the uniqueness of this post, it may be best to look at specifying in the Bill the grounds for removal. That is a matter for discussion and debate.
I do not wish to add anything about Amendment 129, save to support it, but I would add one observation on Amendment 132. It is critical to show that everything is open, and that if the standing advocate is to issue  guidance, such guidance is made public. We do not want, in this area, questions relating to what is going on without the victims having full confidence.

Lord Marks of Henley-on-Thames: My Lords, I shall be relatively brief on this short group of amendments. I stated my support for the amendment of the noble and learned Lord, Lord Hope, in advance, in principle, during debate on the third group. I apologise for mentioning his amendment before he had had an opportunity to speak to it. However, his reasoning was a development of the reasoning that I then expressed. I reiterate his point: for an independent advocate system to work, the advocate must be independent. I take the point of the noble and learned Lord, Lord Thomas of Cwmgiedd, that if “independent” has only appeared, or might only appear, by virtue of the amendment of the noble Lord, Lord Ponsonby, that is wrong. We have all called it independent because the independent public advocacy scheme is a term that has been frequently used. The word “independent” ought to appear in the Bill specifically, and the independent standing advocate could be called exactly that to make the point clear.
That means that such an advocate must be able to advance the victims’ interests without a concern that they are liable to be removed by the Secretary of State without very good reason. For such reasons
“as the Secretary of State considers appropriate”,
which is the wording used in the Bill, is just not good enough. Nothing less than the formulation of the noble and learned Lord, Lord Hope, of them being
“unfit or unable to fulfil their functions”
will do as a justification for removal.
I take the point made by the noble and learned Lord, Lord Thomas. This could also be achieved by a process for termination, not simply by the grounds for termination. Those are not necessarily alternatives; we could have both approaches. I suggest that the Government ought to consider whether the process should not be strengthened. To make the point I have made before, the Bill is shot through with the difficulty that the interests of the victims may conflict with the interests of the Secretary of State. That important conflict of interest can be resolved only by removing power from the Secretary of State.
I turn to Amendment 129 in the name of the noble Lord, Lord Ponsonby, which proposes that office facilities may be afforded by the Ministry of Justice, provided that they do not compromise the functional independence of the standing advocate. That is another point on independence. It is plainly administratively convenient and may be necessary that the Ministry of Justice provides the office facilities, but that does not mean that the bodies are not completely separate, and they must be.
Amendment 128A in the name of the noble Lord, Lord Wills, to which I have added my name, was moved into the second group, but Amendment 129 remained in this group although they are on similar subjects. The noble Earl, Lord Howe, said that the noble Lord, Lord Roborough, would answer on Amendment 128A. The point I made was that proper secretarial support and resources are crucial for the  standing advocate if the system is to work. The noble and learned Lord, Lord Thomas, made the point about resourcing in general terms but made it very powerfully. Appropriate support is essential for the role to be properly done, as are statutory guarantees of adequate resourcing.
Amendment 132 in the name of the noble Lord, Lord Ponsonby, deals with guidance to other appointed advocates on what matters they should consider in relation to a major incident. It is not right that such guidance should come from the Secretary of State. The Secretary of State may have interests in diverting attention to some aspects of a major incident against the interests of considering others. Guidance should come from the standing advocate who has, as the noble Earl, Lord Howe, put it earlier, a leadership role. That is the proper source of such guidance and not the Secretary of State, who has a political interest that may be opposed to the interests of the victims. I suggest that the Bill’s formulation on this is simply quite wrong in principle.

Lord Roborough: My Lords, I thank the noble and learned Lord, Lord Hope of Craighead, for his amendment. This group of amendments concerns the independence of the advocate, and therefore I will discuss them together.
First, the amendment from the noble and learned Lord, Lord Hope of Craighead, seeks to limit the discretion of the Secretary of State as to the grounds on which an advocate’s appointment in respect of a major incident may be terminated. I believe it will be helpful if I explain the rationale behind the current provisions in the Bill. I hope that the noble and learned Lord will be reassured that this power will be used carefully.
There are a number of scenarios in which we envisage the Secretary of State exercising their discretion to terminate the appointment of an advocate. First, for the scheme to be as agile as possible, it is important that we can adapt the resource required to support victims. No major incident is the same, and the processes that follow can often take years to conclude. During this time, there will likely be peaks of activity when it may be prudent to increase the number of advocates actively supporting victims. Following these peaks, it is only right that the Secretary of State has the ability to scale back the scheme to be proportionate. This power enables the Secretary of State to do that effectively.
Secondly, we have always stressed the importance of being able to deploy an advocate as quickly as possible following a major incident. It may be appropriate, following a greater understanding of the developing needs of the victims, to substitute one advocate for another who may be better suited by virtue of their skills or expertise. The Government believe that having this flexibility is important. This amendment would diminish the Secretary of State’s ability to ensure that victims have the best possible representation.
Thirdly, as we have heard throughout the various debates on this part of the Bill, it has been highlighted that victims must have confidence in the advocates for them to be effective. The Government therefore anticipate another use for this power: to remove advocates who may not command the confidence of victims, as touched  on by the noble Lord, Lord Marks, in the debate on the previous group, or stand down any advocates towards the end of official processes because victims no longer want or need support from the advocate.
To go a little further, the reasons why the Secretary of State may terminate an advocate’s appointment could also include a lack of capacity, misbehaviour or a failure to exercise their functions in accordance with their terms of appointment. These terms of appointment, including the potential grounds for termination, will be published. The views and needs of victims are incredibly important. A strong emphasis will be placed on the support needs of the victims, and decisions on the termination of an advocate will always be made with these in mind. Therefore, while I understand and recognise the intent of the noble and learned Lord’s amendment, the Government believe it is necessary for the Secretary of State to have a wider discretion in this area.
I completely agree with the noble and learned Lord, Lord Hope, that independence is critical. We believe that the Bill protects that. However, there was a constructive suggestion from the noble and learned Lord, Lord Thomas, that “independent” be added to the definition of the advocate in the Bill. I will take that away to the department.
The amendment from the noble Lord, Lord Wills, would impose a duty on the Secretary of State to provide the advocate with
“secretarial and all other support necessary for them to exercise their functions effectively”.
While he is not in his place, I would like to answer the noble Lord, Lord Marks, on this point. The advocates will be supported by a permanent secretariat, and the Ministry of Justice has already allocated funding for this. Clause 31 provides for an effective system of support for the independent public advocate by making provisions for a secretariat and remuneration. Work is already under way to provide the advocates with this secretariat and to ensure appropriate separation between them and the Ministry of Justice.
I will take the amendments from the noble Lord, Lord Ponsonby, in turn. The first seeks to make it clear in the Bill that advocates will sit within the Ministry of Justice for administrative purposes but be operationally independent. While I support the intention and spirit behind this amendment, the Government do not believe that this is necessary as this is already our intention for how this new statutory office will operate. Furthermore, the wording of this amendment may not best achieve its goal. It is generally not helpful to refer to government departments by name in legislation, due to any potential machinery of government changes.
The Government are committed to the operational independence of the standing advocate and any advocates appointed in respect of a major incident. The Government took steps to bolster the advocate’s independence earlier in this Bill’s passage by empowering them to report independently and at their own discretion. The legislation is also clear that the advocates will make decisions and utilise their experience to provide support to victims of a major incident in a manner they deem appropriate.
The other amendment from the noble Lord, Lord Ponsonby, seeks to transfer the power to issue guidance to advocates appointed in respect of a major incident from the Secretary of State to the standing advocate. I reiterate the Government’s commitment to the operational independence of the standing advocate and any advocates appointed in respect of a major incident. They will be empowered to take decisions and utilise their experience in a manner that the advocates deem appropriate. However, given the nature of major incidents and the unpredictability of the future, we believe that the Secretary of State’s ability to issue guidance is crucial to future-proof the scheme. The Government are mindful that guidance issued by the Secretary of State should not have any effect on the independence of advocates, which is why Clause 38 specifically prevents this guidance being directed at any specific advocate or incident.
I also underline that guidance issued under Clause 38 cannot limit or alter the advocates’ functions, as outlined in Clause 33. However, we expect that the advocates’ role will develop over time, and it is important that the Secretary of State can issue guidance to help support them, and to ensure consistency in the support they provide to the victims of major incidents. We imagine, for example, that advocates may find it useful for such guidance to include how they may indirectly support victims under 18, or on working with victims or their families who do not speak English or do not reside in the UK.
I turn to the specifics of the noble Lord’s amendment. In practice, the standing advocate will, in most cases, be appointed by the Secretary of State as the advocate in respect of a major incident. This amendment, therefore, which allows only for guidance by the standing advocate to apply to other advocates, would be applicable only where the Secretary of State appoints multiple advocates. We have already made provisions under Clause 32 for a lead advocate in these situations to provide structure, guidance and accountability.
Therefore, while I recognise the intent of the noble Lord’s amendment, the Government believe that it is necessary for the Secretary of State to retain the power to issue guidance to the advocates. There is no doubt that the views and expertise of the standing advocate may be useful in informing this group going forward. I hope this satisfies the noble Lord, Lord Marks, that guidance will never impact on the independence of the actions of the independent public advocate. I respectfully ask the noble and learned Lord, Lord Hope of Craighead, to withdraw his amendment.

Lord Hope of Craighead: My Lords, I am grateful to all noble Lords who have spoken in this short debate. I am particularly grateful to the Minister for stressing several times in his reply the Government’s commitment to the independence of the advocate; that is extremely important.
The problem is that that is not expressed clearly enough on the face of the Bill. It is curious, as I pointed out at the beginning, that it appears in the contents but not the text of any of the clauses. That is curious and suggests that something should be done in  the wording to clarify the matter further to avoid the impression, which Clause 31(2)(a) gives, that the Secretary of State can dismiss the advocate for any reason.
It is possible to develop my amendment a little further—I am speaking off the cuff—to say that the Secretary of State may terminate the appointment for “administrative reasons” or “having regard to the views of victims” or “because the advocate is unfit”, and so on. The point is that one could spell out in this clause a little more clearly what ability the Secretary of State has to terminate the function without undermining the independence of the advocate.
To some extent, one is talking about the confidence the advocate has in exercising what could be quite demanding functions. In the interests of victims, they could be pressing the Secretary of State to do things that may be awkward, embarrassing, expensive, and so forth. It is very important to get this clarified in a way that achieves the commitment the Minister has very helpfully been stressing in his reply to me. I hope we can come back to this. If there is a possibility of discussing this with the Minister and the Bill team, I would very much welcome that. I hope we can pursue it further that way.

Lord Roborough: I reassure the noble and learned Lord that we would like to discuss this further.

Lord Hope of Craighead: I am most grateful to the Minister for that. For the time being, I will withdraw the amendment and we can progress the matter further in discussion.
Amendment 127 withdrawn.
Amendments 128 to 129 not moved.
Clause 31 agreed.
Clause 32 agreed.

  
Clause 33: Functions of advocates appointed in respect of major incidents

Amendment 130

Lord Ponsonby of Shulbrede: Moved by Lord Ponsonby of Shulbrede
130: Clause 33, page 32, line 36, leave out subsection (6) and insert—“(6) Where the advocate provides support to victims under the age of 18, the advocate must conduct or refer to a needs assessment of such persons to determine whether they have capacity to consent to provision of direct support from the advocate, or whether it would be more appropriate to provide indirect support via other persons assessed to represent their best interests.(6A) Before providing indirect support detailed in subsection (3), an advocate must —(a) ascertain the views of the victim under 18 on who is best placed to represent their interests, and(b) have regard to any views so ascertained.”Member’s explanatory statementThis amendment would ensure that a child’s capacity to make decisions for themselves is taken into account when determining whether the Independent Public Advocate engages directly with them or not. Where it is more appropriate to engage with a representative on a child’s behalf, a child’s views and preferences on who is best place must be taken into account.

Lord Ponsonby of Shulbrede: My Lords, I put my name to this amendment. It was tabled by the noble Lord, Lord Hampton, who is unable to be with us.
Amendment 130 seeks to ensure that a child’s capacity to make decisions for themselves is taken into account when determining whether or not the independent public advocate engages directly with them. Where it is more appropriate to engage with a representative on a child’s behalf, a child’s views and preferences on who is best placed for that should be taken into account.
The amendment follows the Children’s Commissioner’s advice for children’s eligibility for direct communication with their IPA, and from criminal justice agencies when making a victim information request. It should follow legal precedent, which means taking into account a child’s capacity and competence to take decisions. The commissioner suggests that the Bill should also establish processes for when it may not be appropriate for a parent to receive communication on behalf of their child.
Children must have agency when engaging with the criminal justice system, including around victim information requests and when engaging with the independent public advocate. This includes giving competent children the ability to indicate who they would like to receive communications from, including opting for direct communication, where this is judged to be safe and appropriate. This process should be consistently embedded as part of a thorough multiagency needs assessment of the child at the earliest opportunity.
I would like to add a different perspective to my amendment regarding my role as a family magistrate. We have, in recent years, moved further towards hearing directly from children when they are involved in particular family cases. We hear children’s views on which parent they should reside with, or whether they should be taken away from their parents. During my time in the family court system, which has been about 10 years, there has been greater trust in hearing directly from the children themselves. We should be very cautious about underestimating what they want to say to the court.
I have had direct and extremely moving experience of children wanting to have their say. They have had their say and they are absolutely clear that their views will be taken into account. However, their views will not necessarily be determinative; that is a decision for the court itself. I add that as an extra perspective on this amendment. The underlying purpose of the amendment is to make sure that the child victims’ views are properly taken into account. I beg to move.

Baroness Brinton: My Lords, I thank the noble Lord, Lord Ponsonby, for his introduction to this important amendment. I have to say that I was somewhat shocked when I first read the Bill. In Clause 33(6), it says:
“Where the advocate provides support to victims under the age of 18, the advocate may do so only by providing support to such persons as the advocate considers represent those victims”.
As a teacher, the noble Lord, Lord Hampton, who submitted this amendment, understands the vital issue of whether a child or young person—as a victim of a  major incident—can have capacity to consent to the provision of direct support. To expect an advocate to make a decision, by passing it on to someone else to represent them, even if it is a parent—it may not always a parent, for reasons I will come to—without checking the child’s capacity or their interests and understanding is just plain wrong.
The example I want to highlight—I have chosen another non-criminal one, deliberately—is the aftermath of the Indian Ocean tsunami in 2004. Many children and young people were separated by the tsunami from their families, with no knowledge of who lived, died or who had been injured, and that included a number of British children. We know, from accounts at the time, that older siblings had to take on the care of and responsibility for the younger ones and for making contact and communicating with the British consul.
I cite this example because the issue of capacity and consent in those early days was vital, but in the longer term it would have been really helpful for those children and young people in their recovery to have been party to sensitive discussions about what had happened. There was mention in an earlier grouping about how one registers the death, and in this example there might have been important differential cultural practices in handling deaths and children might be the ones who can talk about what they want and what their family practice is without, for example, a British consul having to make that decision. I think one of the worst things an advocate or a Government could do would be just to impose someone to represent their interests without gaging their capacity first.
However, this does not just happen in criminal courts, and I am really grateful to the noble Lord, Lord Ponsonby, for citing the family court approach at the moment. We know that family courts often have to consider Gillick competency when hearing from children and young people about their own future. It is also commonplace in children’s social care and education and, above all, in health and about treatment. The CQC has a very helpful guide on the internet called Brief Guide: Capacity and Competence to Consent in Under 18s that sets out exactly what professionals need to consider. I am not suggesting that the CQC briefing or the rules that it uses should be adopted in whole, because issues about treatment are very different where somebody is acting as an advocate or having some parental responsibility. But large sectors of our public system—whether it is health, education or the courts—already use, and are trained to use, competency and consent. They understand when it needs to move to the area that the noble Lord, Lord Ponsonby, mentioned, where a voice is heard but a decision is not necessarily made on the child’s view. Clause 33(6) cuts that out completely, which seems to be totally extraordinary.
I look forward to hearing from the Minister on why it was there and whether there would be some possibility of negotiating something that reflects the actual practice in our courts and education and health systems for children at the moment.

Lord Roborough: My Lords, I thank the noble Lord, Lord Ponsonby, for introducing this amendment, which relates to an advocate’s support of  the victims of major incidents who are under the age of 18. The noble Lord’s amendment would require the advocate to conduct, or refer to, a needs assessment of a victim under the age of 18, to establish whether they have the capacity to consent to receiving support directly from the advocate. Where it was deemed that a child did not have capacity, it would require the advocate to ascertain and have regard to the views of the child as to who best represents their interests before providing indirect support through a representative.
I understand and sympathise with the spirit of this amendment and emphasise that the Government recognise the inherent vulnerability of children in the aftermath of a major incident. Children should not have to bear the burden of navigating complex post-incident processes alone. In the aftermath of a major incident, victims and families will be dealing with grief and injuries and navigating post-disaster processes. This can be a difficult time, and we reasonably expect that child victims will have a parent or guardian who can facilitate their access to independent public advocate support and communicate their views on their behalf. If, in rare circumstances such as those cited by the noble Baroness, Lady Brinton, a parent or guardian is not suitable for this, the Bill gives the ability for an advocate to provide support to someone they consider represents the victims. The advocate will ensure that they listen attentively to the views of child victims through their representative and offer the support they need.
It is well established that child protection agencies within the local authorities have designated post-incident procedures and are well experienced in providing specialist and tailored support services for children. Therefore, it would be duplicative and inappropriate for the advocate to conduct needs assessments as they will not be specialised to carry out such functions, which could cause safeguarding concerns.
The noble Lord’s suggestion of a needs assessment is interesting and has merit in its attempts to give children greater agency. However, the Government do not believe that the advocate would be best placed to undertake this assessment. Furthermore, the Government do not believe that the answer to the issue at hand would be for the advocate directly to support children. The Bill sets out measures to allow children to be supported by a person that the advocate considers represents a child. In most circumstances, this will be a parent or guardian. However, we have not been prescriptive on who that person must be to allow additional flexibility. In rarer cases, it is already open to the advocate to better understand the needs of child victims in considering who represents them.

Baroness Brinton: I am very grateful to the noble Lord. He said two things that concern me. First, the amendment says:
“the advocate must conduct or refer to a needs assessment”,
which is what would happen through the CQC system I mentioned earlier, so it is not entirely dependent, as he implied in his response at the Dispatch Box, on the advocate themselves having to conduct that process and decision. The Minister may be coming on to this   —in which case I apologise for raising it—but my main concern is Clause 33(6). I hope he is going to explain why it does not even talk about making decisions of capacity; it just says that the special advocate has the right to provide support as they decide. There is no reference to checking capacity or consent at all.

Lord Roborough: The noble Baroness obviously makes a good point, and this is a complex and sensitive area. We are to some extent relying on the competence that we clearly expect to see from independent public advocates to make the right decisions in what will be varied situations. We think it would be more appropriate and flexible to address this in guidance.

Lord Ponsonby of Shulbrede: My Lords, I thank the noble Baroness, Lady Brinton. As she persuasively said, there are many other areas where public bodies take children’s views into account. She went through them—health, education, social services and the rest—and I gave my own particular example. The gist of the noble Lord’s argument was that it is not for the IPAs to undertake this role, that there are other ways of making these assessments and that how that happens in practice would be addressed in guidance. I will consider that answer and see whether we want to take this further, because we are trying to make victims—in this case child victims—as explicitly supported in the Bill as possible. I will consider whether a further amendment is appropriate.
My central point is that, in my experience, agencies over the last 40 years, let us say—the time of my adulthood—have consistently underestimated the capacity of children to engage in difficult issues. This needs to be handled sensitively, it needs to be managed and it needs to be clear that it is the adults who are making the decisions, but listening to children in a direct way is a good thing to do, both for the children and for the adults making the decisions, and that is what these amendments seek to achieve. Having said that, I beg leave to withdraw the amendment.
Amendment 130 withdrawn.
Amendment 131 not moved.
Clause 33 agreed.
Clauses 34 to 37 agreed.

  
Clause 38: Guidance for advocates
  

Amendment 132 not moved.
Clause 38 agreed.
House resumed.
Sitting suspended.

Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024
 - Motion to Approve

Lord Caine: Moved by Lord Caine
That the draft Regulations laid before the House on 31 January be approved.
Relevant document: 12th Report from the Secondary Legislation Scrutiny Committee. Special attention drawn to the instrument

Lord Caine: My Lords, I shall speak also to the draft Windsor Framework (UK Internal Market and Unfettered Access) Regulations 2024. I offer my gratitude to my noble friend Lord Hunt of Wirral, chair of the Secondary Legislation Scrutiny Committee; the Joint Committee on Statutory Instruments; and members of those committees in this House and the other place for their expeditious consideration of both instruments.
These regulations deliver on key commitments set out in the Safeguarding the Union Command Paper, the contents of which I set out on the Floor of the House on 1 February. The commitments made in that Command Paper will strengthen our union and the UK internal market now and for the long term. I am pleased that the Command Paper has created a situation whereby the Democratic Unionist Party agreed with the recommendation of its leadership to end the boycott of Stormont and has provided the basis on which the devolved institutions in Northern Ireland have returned, with support from across the community; a Speaker of the Northern Ireland Assembly has been elected with a full complement of Assembly Members now able to serve fully their constituents; a First Minister and deputy First Minister are now in office, and a full complement of Executive Ministers is now forming the Administration in Northern Ireland. It is in that context that I ask noble Lords to consider the two regulations before the House.
I turn to the first of these, the draft Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024, which seek to strengthen and future-proof Northern Ireland’s place within our union in law. They do so consistent with the vital protections contained in the Acts of Union 1800 and by the terms of the Northern Ireland Act 1998. They seek to address sincere concerns among some in the unionist community that Northern Ireland’s status within the union has somehow been diminished. The Government have been clear in our determination to see our union strengthened, and these regulations have been designed with that in mind. They clarify that Section 7A of the European Union (Withdrawal) Act 2018, the sovereign Act of Parliament that gives effect to the Government’s commitments under the withdrawal agreement, operates subject to the democratic safeguards in the Windsor Framework. That, of course, includes the Stormont brake, which gives the Assembly, now that it is up and running once again, powerful and vital democratic oversight over new, amending and replacing EU laws.
These regulations also provide a safeguard against any prospect of regulatory borders between Great Britain and Northern Ireland emerging from future agreements with the European Union. They mean that no Government in the future can agree to another protocol or form of agreement which would undermine the integrity of the United Kingdom internal market. On matters of domestic legislation, the regulations will introduce new safeguards so that government Bills that might affect trade between Northern Ireland and other parts of the UK are properly assessed. Ministers in charge of such a Bill would need to provide a Written Statement to Parliament on whether legislation would have a significant adverse effect on trade between Northern Ireland and other parts of the UK.
I should be clear that this provision does not bind Parliament’s hands, but rather ensures that Parliament is properly informed by the Government. The approach we are taking will deliver clarity to businesses that Northern Ireland’s unfettered access to the UK internal market will not be frustrated.
Finally, this legislation provides for how any independent review of the Windsor Framework would operate, requiring the Government to commission such a review one month after the Assembly having passed a consent vote on the Windsor Framework without cross-community consent. In those circumstances, the Government would be obliged to respond to a report from the independent review within six months and raise its contents at the UK-EU Withdrawal Agreement Joint Committee.
I now turn to the draft Windsor Framework (UK Internal Market and Unfettered Access) Regulations. The Government are clear that the old protocol created unacceptable barriers to the United Kingdom internal market. In response, the Windsor Framework sought to restore the functioning of the internal market by ensuring the smooth flow of trade within the UK. It disapplied a range of EU law, including ensuring that Northern Ireland benefits from the same VAT and alcohol taxes as the rest of the UK. We saw the framework commence at the start of October, with its benefits now being enjoyed by over 3,000 businesses registered on the internal market scheme.
Following the Windsor Framework, the Government announced the border target operating model. In line with this approach, we have now, for the first time, started to phase in checks and controls for Irish goods and non-qualifying goods moving from the island of Ireland to Great Britain. This is a powerful demonstration of Northern Ireland’s integral place within the UK’s internal market and rebuts claims that it is a member instead of the EU’s single market. The reality is that third-country members of the EU single market will now have full third-country processes applied, while Northern Ireland’s businesses have unfettered access to their most important market by far, in Great Britain.
As a result of these regulations, this now includes guarantees for qualifying Northern Ireland goods moving from Northern Ireland to the rest of the United Kingdom via Dublin. This unfettered access is future-proofed, ensuring that it will persist regardless of how rules evolve in either Northern Ireland or Great Britain. These regulations will more squarely focus the benefits  of unfettered access on Northern Ireland traders. The regulations both tackle avoidance of the rules and ensure that agri-food goods are exempt from SPS processes only if they are dispatched from registered Northern Ireland food and feed operators. We will also expressly affirm through these regulations that export procedures will not be applied to Northern Ireland goods moving directly to other parts of the UK internal market. This reflects the legal guarantees secured in the Windsor Framework and achieves the effect of provisions dropped in the then United Kingdom Internal Market Bill by the previous Government in 2020.
The Government are also determined to ensure that public authorities are clear-minded about their existing legal duty to have special regard to Northern Ireland’s place within the UK internal market. We are therefore taking a power to make guidance on Section 46 of the UK Internal Market Act. That guidance will set out how public authorities should have special regard to Northern Ireland’s place in the UK’s internal market and customs territory, and the need to maintain the free flow of goods from Northern Ireland to Great Britain. Public authorities will be bound to have regard to it, ensuring they meet the UK’s international obligations in a manner that is also consistent with ensuring the smooth flow of goods within the internal market.
The Government are now working with vigour to deliver on the commitments set out in the Command Paper, because we want to make Northern Ireland work well for all who live there today and allow it to remain a thriving, prosperous part of the United Kingdom. On that note, I beg to move.

Lord Hain: My Lords, before I get to the specifics of these two statutory instruments, I ask, in relation to legacy inquests under way in Northern Ireland, is the Minister not extremely perturbed—indeed, embarrassed—by the fact that state bodies appear to be openly running down the clock to 1 May, when the due process that we set such store by in the United Kingdom will no longer apply in Northern Ireland thanks to the shameful legacy Act? In one case, a Ministry of Defence official told an inquest, “We have only a single officer supporting Northern Ireland inquests.” In another, the legal representative of the PSNI admitted that further resources could be deployed and more progress made, but said, in terms, “What’s the point?” Is this not a disgraceful way to treat victims of the Troubles, who have suffered so much already? An abject failure by state officials and agencies to produce the necessary files in anything like a timely fashion also continues, despite the relevant state bodies being directed to do so by a serving coroner acting with the full authority of the Lady Chief Justice.
What on earth makes the Minister think that a body which the legacy Act sets up outside the judicial system headed by a retired former Chief Justice, however distinguished, will fare any better? Or, as many suspect, will those who will be denied proper inquests have to make do with a vastly inferior process on the cheap?
Having said that, I congratulate both the Secretary of State and Sir Jeffrey Donaldson MP on the resurrection of Stormont. We hope that the people of Northern Ireland will see the tangible benefits of functioning devolved government without delay. Sir Jeffrey’s detractors  would be wise to bear in mind that having functioning devolution is absolutely critical to safeguarding the union. The DUP recognised at St Andrews in 2006—I remember it well—that the future of Northern Ireland is necessarily shared, and its governance will always entail compromise.
Appropriately, therefore, the package of measures presented in the Safeguarding the Union Command Paper manages to address DUP concerns within the boundaries of the UK’s international legal obligations. Those obligations relate both to the EU and to the Irish Government and remain sensitive and vital relationships for the UK, particularly as they affect Northern Ireland. What happens in Northern Ireland will continue to be crucial to those relationships.
With this in mind, it is worth being exceedingly careful in legislating in this area, and I seek clarification from the Minister on four specific areas. First, relating to the amendment of Section 13 of the European Union (Withdrawal) Act 2018 regarding the transparency obligation, what is the definition of—or criteria for measuring—what would constitute
“a significant adverse effect on trade between Northern Ireland and the rest of the United Kingdom”?
Furthermore, the Command Paper states in paragraph 146 that, if there was to be such a significant adverse effect,
“the Government will set out any measures it proposes to protect the internal market”.
In such an eventuality, how might such measures be made known to Parliament by the Government? I would be grateful for an answer to that question.
Secondly, how is the House to understand the
“prohibition of certain Northern Ireland-related agreements”
that is to be added to Section 38 of the 2018 Act? This regulation specifically prevents only a future UK-EU agreement that
“would create a new regulatory border between Great Britain and Northern Ireland”.
In the Government’s view, does this constitute the complete fulfilment of the Command Paper’s claim to protect against
“future EU agreements which create new EU law alignment for Northern Ireland and adversely affect the UK’s internal market”?
My third question relates to the amendment of the Northern Ireland Act 1998 on the independent review after the democratic consent vote. Why is the independent review to include consideration of any effect of the Windsor Framework on, first, the constitutional status of Northern Ireland, and, secondly, the operation of the single market in services between Northern Ireland and the rest of the United Kingdom? I ask because the Windsor Framework does not cover services and because it is without prejudice to the constitutional status of Northern Ireland as part of the UK. Indeed, the latter point is to be made law with the amendment of the European Union (Withdrawal Agreement) Act 2020 that we are currently considering.
Fourthly, the Safeguarding the Union Command Paper announces some ambitious new structures and bodies. Given their importance to the realisation of the objectives of this legislation, I would like clarification from the Minister on the following matters. How does   the new UK east-west council relate to existing bodies affecting all-UK and east-west governance, including the Prime Minister and Heads of Devolved Governments Council, the Interministerial Standing Committee, and the British-Irish Council? How, too, would it relate to the new ministerial group that, according to paragraph 152 of the Command Paper, is
“to oversee the implementation of the new arrangements”?
How is “political” and “governmental” participation in the east-west council from Northern Ireland to be decided? Is it to be the same as for the North/South Ministerial Council, with two Northern Ireland Ministers designated to attend each meeting, both of whom have to be jointly signed off by the First Minister and Deputy First Minister? How does the function of these new bodies and structures relate to the common frameworks programme?
Finally, I ask something for clarification. The Command Paper states in paragraph 17 that this deal will
“end dynamic alignment with EU law”.
Surely this is particularly misleading. Ministers are spinning the Stormont brake—which can be used only in very specific conditions and on amendments to or replacements of EU law under the protocol—as if that ends dynamic alignment. It does not. Northern Ireland remains dynamically aligned to the same portion of European Union law. To claim that the Stormont brake ends that is like saying, because one could occasionally choose to put a finger over one of the tiny nozzles in a shower head, that the shower no longer has a full-flow function. There are dangers in misrepresenting the facts or in overspinning this deal. No matter how welcome the end—the restoration of Stormont power-sharing, and I very much welcome that—this does not justify any means of getting there.
There are serious questions to be asked as to how much of an honest broker this Government really are regarding Northern Ireland. That the Secretary of State for Northern Ireland held a joint press conference with the DUP leader, but with no other party leader, and that the Prime Minister did not hold one with the Taoiseach—as is usual on such important occasions, and as I remember witnessing—is deeply worrying. The Government claim they negotiated solely with the DUP because the other parties did not have a problem with the Windsor Framework or with the resurrection of Stormont. However, that breaches the process established under the Good Friday agreement of negotiating with all parties—for example, the multi-party talks resulting in New Decade, New Approach in 2020, to which the Minister was an important party as an adviser.
The fundamental conundrum is that Brexit meant a stark choice for English Conservatives and unionists. The harder the Brexit—and both the Tories and the DUP chose a very hard Brexit—the harder the trade border in the Irish Sea and the greater the discomfort for unionists and those Conservatives who trumpet their support for the union but—notably like Boris Johnson and the noble Lord, Lord Frost, did with their Brexit deal—in fact often betray it. None of us knows how  all this will play out over the next decade or so, but we can be sure that Brexit will continue to poison the shallow well of peace and stability on the island of Ireland, and that is a cause of continuing concern.

Baroness O'Loan: My Lords, I endorse the remarks of the noble Lord, Lord Hain, in relation to the wind-down of the inquests as a consequence of the legacy Act. What is happening in Northern Ireland is outrageous at the moment and causes huge distress to victims.
These instruments derive from the Command Paper Safeguarding the Union, which was stated to be the product of detailed discussions with the Democratic Unionist Party. Paragraph 2 of the paper refers to these discussions being conducted alongside
“engagement with other Northern Ireland political parties and the business community”.
Could the Minister tell the House with whom that engagement took place, since other parties were apparently not sighted of the content of this Command Paper? Can the Minister tell your Lordships’ House why the agreed processes of the Good Friday agreement, which are intended to ensure inclusivity and all-party engagement in order to make change or develop matters, and the Northern Ireland Act 1998, which was passed to make provision for the Government of Northern Ireland for the purpose of implementing the agreement reached at the multi-party talks in Northern Ireland, did not operate in this case?
It may have been predicated on enabling the DUP to return to government in the Northern Ireland Assembly—and I am glad to see the Assembly back and running. However, exclusion of all but one party at this critical time, and the failure to follow the principles established in the Northern Ireland Act in the creation of government policy affecting Northern Ireland, are unlikely to generate trust among the political parties or in the UK Government.
In the multiparty document recommending the Good Friday agreement to the people of Northern Ireland, the signatories said:
“We acknowledge the substantial differences between our continuing, and equally legitimate, political aspirations … we will endeavour to strive in every practical way towards reconciliation and rapprochement within the framework of democratic and agreed arrangements … we will, in good faith, work to ensure the success of each and every one of the arrangements to be established under this agreement. It is accepted that all of the institutional and constitutional arrangements—an Assembly in Northern Ireland, a North/South Ministerial Council, implementation bodies, a British-Irish Council and a British-Irish Intergovernmental Conference and any amendments to British Acts of Parliament and the Constitution of Ireland—are interlocking and interdependent and that in particular the functioning of the Assembly and the North/South Council are so closely inter-related that the success of each depends on … the other”.
In that context, there is a regrettable tone to parts of the Command Paper Safeguarding the Union. The agreements made seem to have been totally ignored, as the Government state in paragraph 14 of the executive summary of the Command Paper:
“Overall, this package of measures reflects the outcome of the negotiations with the Democratic Unionist Party; builds upon the progress secured by the Windsor Framework while securing further changes to its operation; looks forward with a broad range of  significant further protections for the UK internal market, including in statute; and establishes the structures that will preserve these protections for the long-term”.
The Government say that there needs
“to be ongoing reflection … The Government is fully committed to that ongoing engagement and work, so that all agreed arrangements operate fully consistently with Northern Ireland’s place in the UK and its internal market, now and in the future”.
Much of what is of substance and contained in the Command Paper is not new; it derives from work done more than a year ago with the EU. Notwithstanding that, given the importance of trust to the functioning of the Northern Ireland Assembly, can the Minister assure the House that future reflection, negotiation and legislative activity will be the product of discussion with all the parties and that there will be no further situation in which the Government negotiate and then legislate on the basis of a document agreed with one party only?
Regulation 2(3) of the Windsor Framework (Constitutional Status of Northern Ireland) Regulations prohibits the UK ratifying a Northern Ireland-related agreement with the EU that would give rise to a “regulatory border”. Apart from the fact that no Parliament can bind its successor, that provision lacks clarity and could result, given the significant economic consequences involved in future EU-NI agreements, in complex and lengthy litigation between parties seeking to assert that a particular measure does or does not involve a regulatory border.
Much good work has been done between the EU and the UK, and there are now vastly simplified procedures applicable in a range of areas such as medicines, customs, the transportation of goods, agri-food, the movement of pets and the entry of plants, shrubs, trees and seeds to Northern Ireland. All that indicates good and constructive work between the UK and the EU, but it is most important that this constructive working relationship is not damaged by unilateral action on the part of the UK.
Many issues remain to be agreed between the EU and the UK. For example, while UK public health standards will apply to goods entering Northern Ireland from Great Britain, EU requirements for animal health and plant health remain fully in place to prevent any risk of transmissible diseases on the island of Ireland and such diseases spreading to other parts of the EU single market. There is also a significant outstanding problem with veterinary medicines, which requires urgent action to prevent significant problems for the agri-food industry in Northern Ireland.
Complex new arrangements have been introduced through the Command Paper for internal market assessments, which will require consideration of whether a new regulation may result in increased red tape or barriers for trade between the constituent parts of the UK and within our internal market. The Government have committed themselves in the Command Paper and the SI to
“an enforceable means for the economic rights of Northern Ireland to be upheld in accordance with the Windsor Framework”.
The amendment of Section 13 of the European Union (Withdrawal) Act 2018, to provide a new transparency obligation, is to be welcomed. But as the noble Lord,  Lord Hain, said, in the absence of a definition of the term “significant adverse effect”, it is not clear how that provision will be interpreted and to what extent it will be effective. Can the Minister provide any more information than that provided to the Secondary Legislation Scrutiny Committee that this will be a matter for government departments to assess?
The second SI seeks to ensure unfettered access for Northern Ireland goods to the UK internal market—that is to be welcomed. Some very burdensome processes resulted from the Northern Ireland protocol. The evidence received by the Northern Ireland protocol committee—now the Windsor Framework committee, on which I serve—was extensive and indicative of significant additional costs being imposed on businesses seeking to import goods from GB, which might pass through that part of the EU internal market in goods that exists in Northern Ireland to EU states such as the Republic of Ireland. It articulates a number of provisions for the Secretary of State for Northern Ireland to issue guidance to assist business and authorities operating in what can be a complex environment. However, the Command Paper refers to the fact that two separate regulatory systems will continue to apply in Northern Ireland: that of the UK and that of the EU in so far as goods are affected.
Today’s disclosure that the financial settlement that accompanied the return of the Northern Ireland Assembly is to be accompanied by conditions to be detailed “in due course” does not encourage hope. Northern Ireland is the lowest-earning region of the UK. It has 130,000 long-term sick people and has economic inactivity rates of 26.8%, including those who care for the long-term sick and injured, many of whom suffered and continue to suffer as a result of the Troubles. If the whole of the UK suffered from those levels of long-term sickness, some 4.5 million people would be long-term sick, rather than the current 1.1 million. Can the Minister assure the House that the conditions to be imposed will not make life even harder for the Northern Ireland population, in effect stealth taxing them further and thus reducing the existing very low incomes of so many people in Northern Ireland?
These instruments will be passed by your Lordships today. What is important is that future government legislative activity is the product of consultation and discussion with all the parties in Northern Ireland, so that trust in the Government develops, and that it takes into account the knowledge and experience of those who do business in and with Northern Ireland, so as to ensure maximum future prosperity in the whole United Kingdom.

Lord Dodds of Duncairn: My Lords, it is a pleasure to follow the noble Baroness, Lady O’Loan, and to take part in the debate. There are two aspects to the package that the Government have brought forward. One is the Command Paper itself, which contains much in the way of the presentation, justification, pledges and promises of new bodies and so on. I hope that there will be an opportunity, at some time in the near future, to debate in full the Command Paper, because what we are also dealing with tonight is the second aspect of the package: the legal instruments and provision. They are what really matter, because it  is only legal change—by legislation—that can alter the current arrangements under the protocol/Windsor Framework.
What do these statutory instruments actually do? In essence, the critical question for many unionists in Northern Ireland, from various parties and none, is: do they remove the Irish Sea border and its cause—the subjection of Northern Ireland to foreign jurisdiction regarding the production of goods and agri-food, a large part of our economy?
Looked at objectively, clearly and forensically, the answer is that, clearly, they do not. Whatever else they represent, they do not remove, at all, the serious constitutional, democratic and, for many, economic damage of the Windsor Framework. However, I accept that they do provide reassurances, clarifications and modifications to certain procedures in how the Irish Sea border and EU jurisdiction operate in practice. Many will see positives in that, and I fully understand it. However, these are all within the context of the continuing application of the framework and the protocol, since not a word of the protocol has changed.
I accept that, in the overall package that has been put forward by the Government in their Command Paper, there are things which are positive, which have been referenced already, such as the east-west council, InterTrade UK and the changes to the budget with the new formula, although I share the concerns about the intervention that appears to be taking place in terms of revenue raising. On the one hand, we are told by many that we need to get devolution back to allow Northern Ireland politicians to make decisions; then, almost immediately, we have senior politicians, including former Secretaries of State, warning that if Stormont does not act in a certain way, Westminster will intervene —so much for respecting the Sewel convention and devolution. I commend the work in other areas too and congratulate those who have been involved in achieving this. There are some significant promises and pledges, although we have heard some of them before; I hope that this time they will be delivered.
Coming back to the legislation, which is the key and operable part of what changes or does not change as far as the current position is concerned, these regulations are being made under Section 8C of the European Union (Withdrawal) Act 2018. These enable Ministers to make regulations for the purpose, importantly, of implementing the Northern Ireland protocol and for related purposes. That is the purpose of the section under which these relations have been found—to implement the protocol. That guides us in terms of what is presented in these SIs.
The Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024 contain five parts. First, we have the new provision, inserted into Section 38 of the 2018 Act, about the union. It is positive in words and declaratory in nature. I take no issue with its contents. However, it does not and cannot change or reduce any obligation under EU law in Northern Ireland. It is not operable or effective, nor has it any efficacy in terms of changing anything that is applied to Northern Ireland under the protocol following the Windsor Framework.
The second change under these regulations is that there will be a new Section 38A, which is said to future-proof Northern Ireland against any future UK-EU agreement which relates to the subject matter of the framework and creates a new regulatory border between Great Britain and Northern Ireland. However, paragraph 7.13 on page 4 of the Explanatory Memorandum states that:
“This provision does not apply to decisions or agreements made under the existing Windsor Framework”.
That is everything that currently applies, and which creates a regulatory border or which will continue to create new regulatory borders under the current Windsor Framework. Nothing is affected that alters that position. If it is wrong and the Government recognise that they need to legislate to prevent regulatory borders in the future, then what about the present position—or the new borders that can be created under the current Windsor Framework? We saw, on the issue of Parliaments binding their successors, how easily the Acts of Union themselves were set aside—“subjugated” according to the High Court, “modified” according to the Appeal Court—but all set aside when new legislation was brought forward.
The third change relates to Section 7A of the 2018 Act. It clarifies that the application of Section 7A is subject to the Stormont brake. Section 7A, as the Explanatory Memorandum explains, is, in the Government’s words, the “conduit pipe” by which EU law flows into Northern Ireland and takes precedence over UK law, whether made at Westminster or in the Assembly. There is nothing new in that; the Stormont brake is already in law, so this is a presentational matter. We have already debated the Stormont brake. The noble Lord, Lord Hain, has pointed to the difficulties with it. Our Select Committee on the protocol—on the Windsor Framework as it now is—on which I have the honour to serve, has looked at this and taken evidence on the very difficult and limited circumstances in which the Stormont brake operates only in relation to new law or to changes to existing law. Remember that the 300 areas of law to which Northern Ireland is subject under Annexe 2 to the protocol itself are not affected at all by the Stormont brake; the Stormont brake does not apply to them.
Fourthly, new Section 13C provides for statements to be made regarding Bills that affect trade between Northern Ireland and another part of the UK. What is the actual effect of this? The Explanatory Memorandum —I sometimes find the Explanatory Memorandum more illuminating than many other things that are brought to bear in relation to statutory instruments—states that this is simply a new “transparency obligation”. That is all. Section 13C requires a statement from the Minister that, in his view, the Bill does not contain provision having significant adverse effect on trade with Northern Ireland. However, the very next subsection gives the Minister a get-out: if he cannot make such a statement, he just declares that he cannot but that he wishes to proceed anyway, and that has to be in the form of a Written Ministerial Statement. I do not underestimate the importance of Written Ministerial Statements, but they do not bind in any shape or form this Government from deviating when it suits them from Northern Ireland. Lots of claims have been  made about this in recent days. In response to concerns raised on the Tory Back-Benches, Ministers were at pains to reassure them that the deal does not constrain the Government from freedom to diverge from Brussels rules.
Fifthly, there is an amendment to Schedule 6A to the Northern Ireland Act 1998, to provide for the review mechanism procedure after the 2024 vote later this year—the so-called “democratic consent” mechanism. This review will be a significant milestone, but remember: the rules of the Assembly were deliberately changed. I well remember the debate in Committee on that matter in December 2020. Everybody who was present from Northern Ireland railed against the fact that here, for the first time in the Northern Ireland Assembly, a significant vote would be done by a majority vote, not by a cross-community vote; the cross-community safeguard was swept aside. Now we have a review which is designed to ensure against the vote being taken simply by a majority and not on a cross-community basis in November or whenever it will be held. How can we ensure that we get cross-community support having done away with the cross-community voting mechanism?
The second SI is on unfettered access. The issue in Northern Ireland has not been about access from Northern Ireland to Great Britain but about Great Britain to Northern Ireland. We were told from day one that there was no issue about access from Northern Ireland to Great Britain. The fact that we now have to put all this in law and in statutory form illustrates the nature of the problem of who controls trade between Northern Ireland and Great Britain. The issue here is about legal access, but it is about more than that. It is about competitiveness of businesses in Northern Ireland in their own market and in Great Britain, because Northern Ireland companies will be subject to producing according to EU standards. They may have the legal right of access to the market in Great Britain, but they will be competing against other businesses in Britain that could be producing to standards that are different from EU standards—less onerous perhaps or cheaper. It is not a question only of having legal access but of having a competitiveness in your own market. Why should businesses in Northern Ireland that are trading within Northern Ireland or within the United Kingdom be subject to EU law in terms of their production and so on? It does make any sense. It is not necessary for the protection of the EU single market .
The Minister mentioned guidance provisions that the Secretary of State can issue to appropriate authorities on access arrangements to Northern Ireland. Again, he did not mention that, on the very next line of the legislation, there is a provision that allows the Secretary of State to
“revise or revoke (in whole or in part) any guidance issued under this section”.
There is not much of a safeguard there in terms of that aspect of it.
I have gone through the statutory instruments and the changes in the time that is available, but I wish I had more time to go through them in even more detail. One thing, however, is clear: try telling people in Northern Ireland who are ordering plants and seeds  and stuff from the rest of the United Kingdom that they can get those delivered to their home. They cannot. That is an Irish Sea border. Try telling people after the debate we had on the Rwanda Bill last night, in which Northern Ireland is still subject to the EU Charter of Fundamental Rights, that there is not some kind of Irish Sea border. That is the result of the Windsor Framework protocol still being in place.
We will debate the animal welfare legislation next week. The reason why banning live exports does not apply to Northern Ireland—whatever you may think of the issue, whether you are for it or against it—is that we cannot decide for Northern Ireland. It is decided for us because we are under EU law on that matter. None of that has been changed by this Command Paper.
On the lanes, three-quarters of non-exempted sectors of manufacturing in Northern Ireland—engineering, electronics, chemicals, et cetera—comes from companies with a turnover of more than £2 million. They are left under full red lane EU border controls as if importing from a foreign country, even when goods are staying in Northern Ireland or moving back to Great Britain. The Government have portrayed the red lane—I am hearing this all the time—as “This is for everything that is going into the Irish Republic or the European Union”. That is not the case. The manufacturing sector does not say that that is the case. It says that even stuff it is producing for the internal market has to go through the red lane.
As for the green lane, we are told that it has been scrapped and replaced by a new UK internal market system. But in the Windsor Framework Command Paper last year, there was reference to the UK internal market scheme, and then it had in brackets “or the green lane” in paragraph 10. The real test—and I ask the Minister to respond to this when he replies to the debate—is: which of the regulations or SIs setting up the green lane is going to be replaced or removed? Will it be the Windsor Framework (Retail Movement Scheme) Regulations 2023, the Windsor Framework (Enforcement etc.) Regulations 2023 or the Windsor Framework (Plant Health) Regulations 2023? Are any of those going to be taken away and replaced, modified or changed in any form? They are not here in front of this House tonight. They set the rules. Whatever else these SIs do—and some of it might not do any damage whatever to the union and might be positive in some respects—they do not undo the problems that we have with the framework. Can the Minister tell us whether EU regulation 2023/1231, which governs the trade between Britain and Northern Ireland for many types of food, is going to be modified or changed?
We do have the Assembly back now in Northern Ireland. The fact of the matter is that that means that we cannot just go on ignoring the matters relating to the Irish Sea border or the framework or the protocol. There are people who would now prefer that it goes away. However, for unionists in Northern Ireland not to highlight these matters, not to show the damage that has been done, not to demonstrate the iniquity of the constitutional and democratic injuries that have been done to the people of Northern Ireland, would be to simply accept and acquiesce in all of this. If we are to have any prospect of making any change in the  review later on this year, or in the TCA talks next year or whenever, we will not achieve any progress if none of these issues is being highlighted, because people will say, rightly, “There is no issue; everything has been agreed or accepted”. We must, therefore, continue to put a spotlight on these issues. We owe it to the people of Northern Ireland to keep doing that, and certainly on these Benches we will.

Baroness Ritchie of Downpatrick: My Lords, it is a pleasure to follow the noble Lord, Lord Dodds, although he and I disagree on the fundamentals of the Windsor Framework and on the fundamentals of Brexit. I say at the outset that this debate tonight and many other debates that we have are a consequence of Brexit and the decision that was taken in 2016 in relation to the referendum. I declare my interests: I am a member of the Secondary Legislation Scrutiny Committee of your Lordships’ House and of the Windsor Framework Sub-Committee, where we have given in-depth scrutiny to all the various aspects of the protocol and the Windsor Framework.
In fact, we had a very good visit in Belfast some two weeks ago on the whole issue of veterinary medicines. We heard directly—I was going to say “from the horse’s mouth”—from the veterinarians and those who supply the veterinarians about the issues and challenges that they are presented with, because even before Brexit, there was the issue of product rationalisation. These issues about the availability of and accessibility to vaccines, which were constrained by Brexit, need to be addressed.
I welcome the restoration of the political institutions—the Assembly, Executive, North/South Ministerial Council and British-Irish Council. I congratulate those who were involved in those discussions, the Ministers who have been appointed, the members appointed to the committees and my own colleagues, who now form the Opposition under Matthew O’Toole. In the Assembly, the Executive, the North/South Ministerial Council and the British-Irish Council, public representatives from Northern Ireland will have that opportunity to voice their issues and challenges, and to try to find solutions.
However, as a democratic Irish nationalist, I do not like this Command Paper much. It represents a one-sided deal between the UK Government and the DUP, and there is no evidence of intergovernmental partnership with the Irish Government on inclusivity; there is no evidence of that inclusivity, of multi-party talks, of parity of esteem or of rigorous impartiality. Those concepts, which characterised previous agreements, do not exist. While I understand that this was important to get a deal over the line and to ensure the restoration of the political institutions, I say gently to the Minister that it is most important that the UK Government work according to a programme of inclusion and revert to the basis of bipartisanship with the Irish Government, parity of esteem and the principle of consent. They are vital to the resolution of any of the outstanding issues with which we are confronted.
There are those who would say that this represents a departure from the Downing Street declaration  of 1993 about the UK Government’s position and  the Good Friday agreement, to which the principle of  consent was central. I refer and defer to my colleague on the Front Bench, the noble Lord, Lord Murphy, who was a negotiator on behalf of the UK Government on the strand 1 proposals, along with my colleagues in the SDLP, the noble Lord, Lord Empey, and the Ulster Unionists, and other parties.
But, as a nationalist, when I read this document I fear that my colleagues and I do not exist. We need a departure from that to ensure that all of us together can achieve that level of bipartisanship, partnership and parity of esteem. I urge the Government to move towards that.
My noble friend Lord Hain referred to bodies in the Command Paper that will be subject to subsequent legislation—Intertrade UK and the east-west council. How do they fit within the existing structures of the Good Friday agreement? I refer to InterTradeIreland, the British-Irish Council and the British-Irish Intergovernmental Conference. Are they superfluous to what already exists?
The actual regulations are, in many ways, the legislative outworking of the Command Paper, as was already referred to by the noble Lord, Lord Dodds. What will be their impact on the Windsor Framework? Do they represent a departure from or a building on the Windsor Framework that was negotiated with the European Union? What consultation and discussions took place with the European Union on these statutory regulations? Was there any need for such discussions, because there might not have been any material change to the Windsor Framework? What is the impact on the Good Friday agreement and the principle of consent? What is the impact of these and future SIs on the all-island economy and the existing north/south structures? We have, for example, the North/South Ministerial Council and all the north/south implementation bodies that look at cross-border issues such as tourism, the dairy industry, Coca-Cola, food processing and the drinks industry.
As the Secondary Legislation Scrutiny Committee stated in its report on these regulations:
“Given the complexity of the interaction of two regulatory systems in NI”—
accessing the EU single market and being part of the UK internal market—
“we note the importance of the forthcoming guidance to provide clarity to businesses and other stakeholders on how the new arrangements should be applied in practice”.
Can the Minister precisely outline the framework for the publication of that guidance, and what engagement and consultation will take place with your Lordships’ House and the other place, and with the devolved institutions and communities in Northern Ireland, on planned future legislative measures?
Finally, what is the relationship between these regulations and the border target operating model, and what is their impact? I welcome that with these regulations there will be a lessening—I hope, an eradication—of the restrictions to unfettered access between the UK and Northern Ireland. But we must remember that these regulations, the protocol and the Windsor Framework are the result of Brexit. The protocol and the Windsor Framework were clearly seen as mitigating measures to deal with the particular circumstances on the island of Ireland.
I would like to know what impact these regulations will have on the operation of north-south co-operation and trade. I firmly believe that, whatever happens, we have to build on good will, believe in the commonality of interest, and build on friendships and relationships, in order to create a better place for all of the people in Northern Ireland.

Lord Morrow: My Lords, I will not repeat in detail what has already been said but will briefly underline some of the most important points as I see them, before looking in more detail at some of the specific provisions in the regulations before us today.
The green lane has neither gone nor been replaced. Paragraph 10 of the Windsor Framework Command Paper, published triumphantly by the Prime Minister on 27 February 2023, states that the Windsor Framework
“puts in place a full set of new arrangements, through a new UK internal market system (or green lane) for internal trade”.
The Safeguarding the Union paper, by contrast, commits the Government to:
“Replacing the green lane with a default UK internal market system”.
The green lane and the internal market system are the same thing. You cannot replace something with itself. The Government are doing their best to pull off the sleight of hand of the century, but in my opinion they have failed. The people of Northern Ireland are not fools. These regulations change nothing fundamentally in what were called the red and green lanes until the week before last.
Call them what you like. While we have some innovations from the monitoring committee, Intertrade UK, and the new dispensation from the EU on those rest-of-the-world products that have been through UK customs being allowed to move from one part of the UK, that is GB, to another, that is Northern Ireland, the basics remain unchanged. This is demonstrated most clearly by the fact that the Windsor Framework (UK Internal Market and Unfettered Access) Regulations 2024, before us today, do not repeal or amend the legislation introduced last year to give effect to the green lane UK internal market system legislation.
As such, fundamentally, the legislation before us today leaves the Irish Sea border untouched. Goods that do not travel through the red lane will have to travel through the green lane—aka the UK internal market system—which requires the companies concerned to join the trusted trader scheme. In relation to that scheme, just yesterday the Trader Support Service contacted businesses which bring goods from Britain to Northern Ireland. In that correspondence, the Trader Support Service confirmed that Northern Ireland is treated as EU territory, with Northern Ireland products treated not as UK goods but EU goods. That speaks volumes.
Some of the companies have had this information brought to them. They have an export number and they complete both customs and SPS border paperwork, and are subject to 100% documentary checks, mandated by Regulation 12 of the unamended Windsor Framework (Retail Movement Scheme) Regulations 2023, and 10% to 5% identity checks, mandated by Regulation 13 of the same 2023 Regulations.
This confronts us with the central difficulty with the name of the “UK internal market system” and the title of the Windsor Framework (UK Internal Market and Unfettered Access) Regulations 2024 before us today. What they describe is not unfettered access or an internal market but rather the negation of both. The fact that in order for goods to cross from GB to Northern Ireland one needs an export number and to submit customs and SPS forms, albeit simplified, and be subject to 100% documentary checks and 10% to 5% identity checks, is not unfettered movement within the same internal market. If it was, there would be no need for an export number, and there would be no customs paperwork or customs documentary checks, and no identity checks at a border control post. These border demands give effect to fettered access, as goods move from one internal market to another. If we want to see unfettered access within an internal market, we need to look instead at goods moving from the UK to the Republic of Ireland, across the land border. Here there are no requirements for customs forms, simplified or otherwise, and no customs documentary checks and no identity checks.
Regulation 2 of the Windsor Framework (Constitutional Status of Northern Ireland) Regulations 2024 states:
“The Windsor Framework is without prejudice to … Northern Ireland’s part in the economy of the United Kingdom, including its customs territory and internal market”.
That is simply declaratory. It makes an assertion, but we all know it is not true. The Windsor Framework places Northern Ireland in a different internal market for goods than the rest of the United Kingdom. These regulations, as we have seen, do nothing to remove the border in the Irish Sea which places Northern Ireland in a different internal market for goods and can be crossed outside the red lane only if you have an export number, if you complete customs and SPS paperwork, and if you are subject to 100% documentary checks and 10% to 5% identity checks.
Regulation 2 is supposed to provide reassurance on the basis that it states that the Windsor Framework is without prejudice to Parliament’s sovereignty over the Act of Union. What that really says is that, while Parliament has the power to stand up for the equal rights of all UK citizens and to reverse the arrangements flowing from the partial suspension of Article 6 of the Act of Union that have resulted in the partial disfranchisement of 1.9 million UK citizens who can no longer stand for election to make the laws to which they are subject in 300 different areas, Parliament is not intervening to put this right. What a tragedy. I am not sure on which planet being presented with these facts would be deemed to be reassuring. It is profoundly disturbing and suggests that, notwithstanding their ability to correct the present injustice, Parliament and the United Kingdom Government do not have the moral courage to stand up for all their citizens against the wholly unacceptable demands of foreign powers.
The SI then continues with evasion, hoping that it can avoid the need to take responsibility in the areas where hitherto it has not taken responsibility, by changing the subject and saying that it will not take any further  irresponsible decisions, but ignoring the key issue—the irresponsible decision it has already taken to facilitate the partial disfranchisement of 1.9 million of its own citizens.
The EU might have a preference for managing a border in a particular way, but the United Kingdom and this Parliament cannot allow it to create the impression that its preferred way of handling the border is the only way of managing the border when other ways exist. Mutual enforcement may not be the EU’s preference, but in a context where that option exists and where the alternative involves the partial disfranchisement of 1.9 million people, violating the heart of the Good Friday agreement principle of consent and disrespecting the territorial integrity of the United Kingdom, the EU’s preference for managing the border cannot be the last word on the matter. What UK Government worth their salt could possibly settle for such a shameful outcome?
In this regard, it is important to remember that mutual enforcement is actually a way of managing the border that was developed within the EU by three supporters of the EU: Sir Jonathan Faull, the then director for competition policy and deputy director-general at the directorate general for competition in the Commission, Professor Weiler and Professor Daniel Sarmiento. It is also important not to forget that this solution was described by the Financial Times as a “win-win” and that, writing after the EU decided to reject mutual enforcement in favour of the current approach, Weiler wrote:
“( … We continue to believe that there were answers to all the objections that were raised, but the Commission team seemed to be locked into their repeated assurance that there were no alternatives to the backstop). Be that as it may … eventually the original backstop had to be modified, though at the price of a huge concession by Boris: the introduction, however disguised, of a customs frontier within the UK. But does anyone believe that is a stable solution?”
What we need now is not SIs but a Prime Minister who is prepared to stand up for our country: the UK. He should declare the Windsor Framework void on the basis that it is not a valid treaty because, despite Article 1, the effect of the framework is to disrespect the territorial integrity of the United Kingdom. That means that it is not a valid treaty. He should tell them that if they want to revisit the trade and co-operation agreement, they can, but they must realise that, going forward, the territorial integrity of the United Kingdom and the equal rights of its citizens to stand for election to make the laws to which it is subject are not up for debate.

Lord Bew: My Lords, I rise, first, to make clear my strong support for these two statutory instruments. I say one thing straightaway: there was no possibility of a settlement to the difficulties created by Brexit that did not involve an element of compromise. I have heard the phrase “the people of Northern Ireland” used several times tonight, as if there were one people of Northern Ireland. There are in fact two peoples in Northern Ireland; that is very brutally the case. The latest agreement reflects the compromise, and I will come back to why that is so.
Equally, I have heard a lot of talk about business opinions. The truth is that the great bulk of business in Northern Ireland is solidly in favour of the Windsor  Framework; again, I think it is worth recording that. But the most important thing of all is to record the fact that there are two communities.
I have heard a lot tonight about how the Good Friday agreement has been in some way flouted. I want to say something quite important about this. The international agreement places certain responsibilities on the hand of the sovereign Government. Where a situation of alienation arises in one community or the other, the sovereign Government—in this case, obviously, the United Kingdom Government—have a responsibility to deliver: to act in a way that ends that alienation, if at all possible. That is what the international agreement means.
I have heard aggrieved nationalists protest about the unionist content of the Command Paper. I did not hear that when, for example, the Irish languages Act went through this House. That was clearly designed to deal with the alienation of one section of the community, which wanted that Act. I am not aware, rightly or wrongly, that there was any enthusiasm for it in the unionist community.
This is another version of a similar attempt by the Government to fulfil their functions, which were given to them in an international agreement. It is as simple as that. There was no other way of restoring Stormont had the Government not faced up to the fact that every unionist public representative was against the protocol as it then existed. That includes the Ulster Unionist Party as well as the DUP. There was no other way of restoring Stormont but by the route that has been chosen. I am slightly surprised tonight to hear people say, “I’m glad Stormont’s come back but I don’t like the way it was done”. Let us be clear: there was no way of doing it other than the way that the Government chose—none whatever. Everything else is just pie in the sky. There was only one way of doing it, and this Command Paper is part of that way.
Perhaps I could put that in some context. This Command Paper, which is basically unionist in tone, is number five in a series of key documents. The first was the joint report of December 2017, then came the withdrawal agreement that the May Government agreed, which did not in the end get through Parliament, then the withdrawal agreement that the Johnson Government did agree, and finally we have the Command Paper Safeguarding the Union. It is the fifth item on the bookshelf.
The crucial thing to understand is that the joint report of 2017, because of the weakness of the then UK Government, was a huge victory for the Irish Government—so much so that senior Irish officials regarded it as having gone too far. In particular, there is the commitment to the island economy. The island economy may be said to exist in agri-food; otherwise, it does not exist in substance. There are two economies on the island of Ireland. This was a flouting of the Good Friday agreement.
I can remember the days of 1997 and 1998. I am looking at the noble Lords, Lord Rogan and Lord Empey, who may remember this. The Irish Government never talked in those discussions about an island economy. The Irish Government, let alone the British Government, talked about two economies on the island of Ireland.  That was the basis of the agreement reached in 1998. It did not stop those people who insist that the Good Friday agreement was about an island economy—the TUV said 25 years ago, “This is an island economy; political unification is just about to come”. Exactly the same thing is being said 25 years later, with equally little evidence, about the Windsor Framework. It is just a repetition of a tired old trope.
The Safeguarding the Union paper reflects the hard reality that the European dimension of the British economy and the all-Ireland dimension of the Northern Irish economy are limited; 20% in total, probably something of that order, of the Northern Irish workforce will have to think about European law in these firms. Most of these are extremely enthusiastic to embrace it because it is important to their export concerns. Having said that, the bulk of the economy in Northern Ireland, with its large state sector and so on, is locked into the rest of the United Kingdom. These are just brutal facts; no amount of rhetoric will change it. But it was very dangerous for the UK Government to agree in 2017 that they would foster an island economy.
Five years on, we have now moved to a very different place. The withdrawal agreement that Theresa May brought to this House makes absolutely no reference to the existence of a Northern Irish Assembly. It does matter what the people of Northern Ireland think—both sections of them. It matters what they think about these events and they should not be imposed. There should be a mechanism for consent. The 2019 withdrawal agreement opened the door to a mechanism of consent, and later that year the Assembly would have that vote on the mechanism of consent. I do not accept the idea that it is only the views of one community that matter in this respect. The views of both communities matter. For all its faults, the 2019 withdrawal agreement had a role for the Assembly and moved away from the idea that you can just impose willy-nilly on the people of Northern Ireland these arrangements without any mechanism of democratic consent.
That is the context. Yes, there is a unionist tone to Safeguarding the Union, but it has to be seen as an answer to a progress of four other documents. It is the fifth document in a process to sort this out. It is a point of rebalancing these arrangements and it was the only way to achieve the return of devolution in Northern Ireland, which we all recognise is a good—although some of us do not seem willing to accept the means by which it was done.
I want to say a word about how this debate is progressing in Northern Ireland today. I accept completely that there is an argument, as the noble Lord, Lord Dodds, eloquently raised, about European law. However, the seven tests of the DUP, put to the people of Northern Ireland in June 2021, do not make European law the central issue—or any type of issue. It is just indisputable. It is only two little words; they are not there. The people of Northern Ireland were asked to vote on this matter; they were not asked explicitly to vote on the question against, “I will not live with any form of European law”. They simply were never asked this. The seven tests are absolutely explicit about the issues. There will be an argument about how well they have  been met, and the current DUP leadership argues in substance that there has been substantial progress in meeting the seven tests.
What has happened is that there has been an interaction in the way that I have talked about between the Good Friday agreement and the Act of Union, properly understood. Again, those who argued on the Act of Union had apparently just never read it. If they had, they would have warned their supporters that it includes tariffs and an Irish Sea border far stronger than anything that is included here. It was intended to be temporary but operated for 79 years. They would have told their supporters that there were customs borders between Britain and Northern Ireland for most of the life of the union, unless they wanted to frighten them and say, “This is the most frightening thing in the world”. It is fairly clear that those who made an enormous storm about the Act of Union were unaware of its full contents and the provision that it makes—for example, taxes on Bibles crossing the Irish Sea.
That is now over and Northern Ireland has moved on, but we have to understand that there is a serious attempt in the Command Paper, which is a very detailed historical exegesis, to deliver on the part of the Act of Union that is living. The people of Northern Ireland should be treated fairly in these matters, and it is a serious attempt to expand that part of the Act of Union in so far as that is possible. I assure the House that compromise is unavoidable on these issues.
I have one final point about the achievement embodied in these statutory instruments and the re-establishment of the Assembly. The Conservative Party is in the position where it supports the union willy-nilly; it has no conditions on that. That is not the Labour Party position in recent times. Since Tony Blair’s famous speech at Balmoral, which I and the noble Lord, Lord Murphy, remember, the position of the Labour Party is that it supports the union, so it is not neutral on that, but only on the basis of a working power-sharing devolved north-south set of arrangements. That is the classic position of the Labour Party as I understand it, and I do not hear any sign that it has changed. As a result of this agreement, the instability that might have flowed from the possible election of a Labour Government will not flow because we now have power-sharing devolution. The possible tensions between a London Government and Northern Irish unionism will not be there. That is a very significant point but so far, in all the recent debates, it is not a point that I have heard made on behalf of the deal that has been done.

Baroness Hoey: My Lords, I start by stating strongly, at the beginning of my contribution, my agreement with the noble Lords, Lord Dodds and Lord Morrow, that not one word of the protocol, rebranded as the Windsor Framework, has been altered. That is reality. The Irish Sea border remains with the same force that it always did. Despite the claims made by the Prime Minister, the Secretary of State and Sir Jeffrey Donaldson that the Irish Sea border is removed and the Act of Union restored, nothing could be further from the truth. Indeed, a quarter of the glossy Command Paper is spent basically explaining  why the Acts of Union must remain suspended, as the Supreme Court said they were, while at the same time trying to mislead people into believing that in fact they have not been. That is confusing, but that has been the purpose of the way this whole thing has been presented: smoke and mirrors to distract, mislead and cause enough confusion that the deal would be accepted by those who had not looked at it in great detail.
There is a natural desire among MLAs to get back to the Assembly and the Executive. Indeed, whenever the protocol was mentioned in this place, noble Lords would say, “Oh, if only we could get the Executive back”, as if that would sort everything out. Many of the MLAs wanted to get back because they thought that they would be able to sort out the health service, the public service problems and other issues. We will see how that works out.
Before I turn directly to the statutory instruments themselves, I pay tribute to the grass-roots movements in Northern Ireland that, along with many members of the DUP, stood firm on their promises to the electorate, and to the MLAs who stood firm and were not taken in by offers of Speakerships, red boxes or committee chairs. The noble Lords, Lord Morrow, Lord Dodds, Lord McCrea and Lord Browne, and the MPs Carla Lockhart, Sammy Wilson, Paul Girvan—my MP—and Ian Paisley were also opposed to the deal.
It is interesting that Sir Jeffrey and indeed other new Ministers in the Assembly spent the first few hours having a go at, and being really angry about, Jim Allister, the leader of the TUV. They went on about how he had simply shouted and not achieved anything. That is interesting because I appeared on lots of platforms all over the country in Northern Ireland with Jim Allister, Sir Jeffrey, Jamie Bryson and a number of others at the anti-protocol rallies, and it is rather ironic that they turned their fire on Jim Allister for shouting when I recall many occasions when Sir Jeffrey shouted even louder.
The reason that Sir Jeffrey and others turned their fire on Jim Allister and others was to hide the embarrassment of not having kept their promises. They had shredded all their promises. The word “honesty” has to come into politics. When people make promises and then do not keep them, that does not do the cause of politics and politicians any good.
I want to deal particularly with the red lane in the statutory instrument, and how that is being dealt with. We have heard over and again that the red lane is acceptable because it pertains only to goods that are going to the Republic of Ireland. If that were so, that would not be a problem. The difficulty is that this legislation does not touch the definition of the red lane, so it continues to be concerned with goods going to the Republic and with the crucial inputs that go into Northern Ireland manufacturing that come from the rest of the United Kingdom. It is important to be very clear that the green lane—or the UK internal market system—pertains only to completed consumer goods. The initial name for the green lane was the internal market system, so that has not been changed. The idea that it pertains only to completed consumer goods is deeply worrying, suggesting that the Northern Ireland part of the UK economy had become a consumer  element, not a producer. Economic life based just on consumption is completely unsustainable; it must be based on a balance of consumption and production.
The ultimate destination of the inputs that travel on the red lane to facilitate manufacturing in Northern Ireland is completely unknown at the time that the inputs travel. The products that will result from the productive process in which they play a part have not even been made at that time. The majority of goods that are made in Northern Ireland and do not remain in Northern Ireland end up going to Great Britain but, because there is a chance that they will be sold in the Republic, the EU says that those goods must be produced to EU standards, in line with EU law and that, to secure this, the whole of Northern Ireland must be subject to the EU and not UK law in that aspect of trade.
That takes us to the very heart of the problem with the protocol—it is EU law. It is because of the possibility that goods manufactured in Northern Ireland entirely on the basis of Northern Ireland inputs could be sold in the Republic that the EU claims the right to make Northern Ireland law, notwithstanding that Northern Ireland is not in any way represented in any parts of the EU’s legislative chambers or the European Parliament. It claims the right to make not just one law for Northern Ireland or 300 laws, but law in 300 areas.
Some try to suggest that it is no longer a problem because of the Stormont brake. Although the Stormont brake gains a new reference in the constitutional status of Northern Ireland regulations 2024, nothing in this statutory instrument changes how the brake operates in any way, as has already been said by the noble Lord, Lord Dodds. It suffers from the same fatal flaw—rather than addressing the problems of the Windsor Framework, it partly disfranchises 1.9 million UK citizens so that in 300 areas of law, people in Northern Ireland can no longer stand for election to make the laws to which we are subject. The brake fobs us off with the demeaning lesser right of standing for election to try to stop laws coming into force that have already been made for us by a foreign parliament.
This problem must be understood from both the domestic and international sides. Viewed domestically from within the UK, the essence of our political settlement is that we all have the positive right to stand for election to make all the laws to which we are subject, not a negative right to try to stop laws made by legislators from other countries. The idea that any UK citizen, from any part of the UK, should be asked by Parliament to settle for such an arrangement is really extraordinary. I believe it effects a breaking of faith with respect to the basic covenant that underscores our politics. It also creates two classes of citizens: UK citizens in England, Wales and Scotland continue to have the right to stand for election to make all the laws to which they are subject, while in Northern Ireland we have the right to stand for election to make only some of the laws to which we are subject. As someone living now in Northern Ireland and from Northern Ireland, but who represented an English constituency in another place for 30 years and was elected eight times, I cannot admit this profound breaking of faith within the body politic. This is a real rupture and it is doing untold damage overall to politics in this country.
Of course, that is not the full extent of the difficulty because the brake does not apply, as has been said, to all the laws imposed from Brussels. To that extent, rather than being fobbed off with a negative rather than a positive citizenship, we have to make do with no citizenship at all. That is not all: if the change in the imposed law is made to existing law, any attempt by Stormont to block the law can be stopped by the EU—and if the UK does not agree with the EU then the matter goes to international arbitration, which could side with the EU against Stormont. If the change is by way of creating new EU law, meanwhile, the Government can overrule Stormont if the Minister believes that there are exceptional circumstances that justify the adoption of the decision.
These limitations were in the brake as introduced last year and the regulations before us do nothing to address them in any way. In this regard, the suggestion that Regulation 2 of the Windsor Framework (Constitutional Status of Northern Ireland) Regulations provides reassurance is based on a complete misunderstanding of our political system and of the people of the United Kingdom. The sovereignty of Parliament is not in doubt. It is precisely because Parliament is sovereign and yet has decided to partly disenfranchise 1.9 million UK citizens, in response to European Union pressure—when it could just as well have decided not to give in to that pressure—that makes the current arrangement so objectionable and so destructive of the trust upon which our politics depends.
How can we tell the people of Northern Ireland that it is important to go out and vote when we so happily acquiesce to the process of undermining the value of the vote in Northern Ireland? Indeed, how can we tell citizens that it is important to go out and vote in other parts of the UK when our actions in Northern Ireland suggest that having a voice is so unimportant that its value can be rendered null and void in so many areas of law? It is a shameful arrangement. It is very sad that so many noble Lords and Members of Parliament in the other place do not seem to realise this. This shameful arrangement places the trust and integrity on which our whole body politic depends in jeopardy.
If we look at the international aspect, that is exactly the same. It is wrongly asserted by some that international law rests on the foundation of pacta sunt servanda—that agreements must be kept—but that is not the case. If it was, a treaty effecting disenfranchisement or slavery would be unimpeachable because it rests in a treaty. In truth, however, in international law there is a clear understanding of certain ground rules that must be respected in making valid treaties. These testify to respect for the first move of international relations: the move of recognition, when one state recognises the right of another to exist and its territorial integrity, with state A thus renouncing any claim to making law for its territory or any part of its territory, in return for reciprocation from state B.
To this end, the statement that nothing may be construed as permitting any activity contrary to the purposes of the principles of the United Nations, including sovereign equality, territorial integrity and  the political independence of states, is a constant refrain in international agreements of all kinds. Drawing the domestic and international perspectives together, we can see that implicit in it is renouncing any claims to make the laws of another jurisdiction. Implicit in respecting the principle of territorial integrity is respecting the integrity of the citizenship of its citizens.
Rather than being different things, these are two sides of the same coin. While article 1 of the Windsor Framework involves the EU saying that it respects the territorial integrity of the UK, most of the rest of the framework claims the right to make laws for part of the UK. Thus, it refuses, as a matter of practice, to recognise the territorial integrity of the UK. As the noble Lord, Lord Morrow, said, the Windsor Framework should be declared void on account of its failure to respect the basic ground rule of international relations and recognise the territorial integrity of the UK.
The truth is that the framework might suit the European Union, and particularly the Irish Government. I say to the noble Baroness, Lady Ritchie, who spoke about good relations between the Irish and British Governments, that we do not have very good relations when the Irish Government are taking the British Government to court over the legacy Act; that does not show very much good will from that particular Government. This has been in their interest, yet they say that the motivation is to respect the Good Friday/Belfast agreement.
What has been effected is the most dramatic assault on the Belfast agreement’s consent and cross-community principles. It is just outrageous. I know that the Minister thinks it is outrageous because he was there when we were discussing it at one stage before he became a Minister. The only thing that has been changed to suit was moving from cross-community to majority vote for the protocol. You have to ask why that was done. That has changed the whole feeling of trust in our Government for many people in Northern Ireland.
I will add one more thing. The noble Lord, Lord Dodds, talked about seeds and potatoes and other things that might not be able to come in easily to consumers. I got a message this morning from someone who works in a supermarket. I am not going to name it. At the supermarket, a whole pile of flowers had arrived, presumably because it is apparently St Valentine’s Day tomorrow—it is long past when I think about St Valentine’s Day. Those flowers, after appearing in the supermarket, had to be withdrawn because they had a message from the people who had sent them saying, “Sorry, EU law has been broken”. Those flowers had to be taken away from the supermarket. This is happening in Belfast today. Every single day people find there is something new and different.
All those who think that somehow this is going to go away now that the Assembly and Executive are back, and we have a First Minister and Deputy First Minister walking around very happily together—that everything is solved—are going to find that every single day, every single week there will be something new.
What we do not need are statutory instruments. These are nice fluffy documents, with some quite helpful things in them, but it is just all words about  good relationships with the British Government and their support for the union. We need a Prime Minister and Government who will stand up for the United Kingdom against the European Union and recognise that we voted to leave the European Union, but that Northern Ireland has been left in the European Union for so many aspects of its work and life. That is where the real problem is going to come over the next month or two.

Lord Alderdice: My Lords, one of the strengths of your Lordships’ House is that it can look at legislation with a microscope and draw back and look at the larger picture. I want to try to do the latter for a few minutes.
There is not much doubt that the reason that we are addressing these statutory instruments, and indeed the wider question, is as a consequence of Brexit. Without Brexit, none of these issues would have been around. The majority of people in Northern Ireland did not vote for Brexit—they voted to remain—so when we talk about the people of Northern Ireland wanting this, that or the other, one of the things we should remember is that they did not want Brexit.
The consequences of Brexit were all known in advance. They were not all paid attention to in advance—some people did not want to see what the consequences were—but they were there to be seen. Ironically, the idea of Brexit was supposed to be that we would be free in the United Kingdom—whatever exactly that meant. But what do we find so many years later? That we cannot talk about anything at all without paying attention to Brexit and giving off about the fact that we cannot ignore the European Union and we wish we could. That is what I hear, but we cannot ignore it.
The reason for the protocol was not to address problems in Northern Ireland; it was—and I have said this many times—that a consequence of Brexit was to damage the relationship with the European Union and the United States. After a couple of Prime Ministers not making much of a show of things, Prime Minister Rishi Sunak realised that the key thing for him to do was to repair the relationships with Europe and the United States, because, despite all the talk of being able to have lots of agreements, co-operation and all sorts of things, it was not possible at all; you have to have relationships with these two powerful entities.
The idea that the wishes of some of the people of Northern Ireland should drive the interests and decisions of the British Prime Minister and the wider world is not very realistic. We end up having to address the reality and the consequences. We can be cross about it, and I understand that. We can feel let down, even betrayed, and I understand that. But in the real world there are consequences and we have to try to find some way of addressing them.
Another thing I have heard about is inclusivity. Of course, the Good Friday agreement was not inclusive, because the DUP and the UKUP, as it was at that time, walked out. They were not part of the Good Friday agreement; they never supported it. In fact, there was talk about the only thing that ever changed, but actually there were changes under the St Andrews agreement and they turned out to not be a very good idea in the long run for some of the people who  wanted to see those changes. For example, it brought about the fact that we have a Sinn Féin First Minister, which is not something that some of the people who demanded changes would have wanted to see. We have to be very careful what we ask for.
It is also the case that the whole structure of the Good Friday agreement and the Assembly was not entirely inclusive. It included unionists and nationalists—and the noble Lord, Lord Bew, was talking about the two communities—but there is an emergent third community, which has a very strong view about things and which is not partisan unionist and not partisan nationalist. It takes a view that what we want to do is to find what is in the best interests of the people of Northern Ireland at the particular point when that generation is making a decision. At the moment, that may well be to stay within the United Kingdom, and in a generation or two generations’ time a different decision may be taken. It is not a partisan view, but the whole structure of the Assembly’s voting arrangements is not inclusive from that point of view.
Some people will not sign up for agreements—and almost all of us at one point or another do not want to sign up for an agreement—but the one thing we must understand is that, when we do not like an agreement or want an arrangement, the solution is not to bring down the whole system of government. If we do not agree with something in Westminster, we vote against it and we argue against it, and we try to persuade people of it, but we do not bring Westminster down, because that would bring chaos. Both Sinn Féin and the DUP have found ways of bringing down the structure of governance in Northern Ireland, and it has not made for a better life for the people of Northern Ireland or for more stability in Northern Ireland. We have to remember that. I say to the Minister, and to any future Minister on the other Benches who may have the responsibility, that we need to end the notion that, if you do not like what is happening, the solution in Northern Ireland is to bring down the whole system of government. Whatever else happens, we have to find a way of making sure that that does not happen.
I have a good deal of sympathy with some of the things that have been said on the other Benches, particularly the presentation by the noble Lord, Lord Dodds. There is a great deal of truth in what he says. Promises have been made, undertakings have been given and a certain spin has been presented about what is said in these documents, what the outcome of them is and so on. He is quite right. But the question is: what is the alternative?
I have said a number of times, in your Lordships’ House and in other places, that in my political judgment—we can all be wrong—the people who need a Northern Ireland Assembly most are the pro-union people of Northern Ireland. That is the only place where they will really have a platform to express their views and have their say. It is absolutely not an unlimited say, but at least it has the possibility of being expressed. That is why I have said, on a number of occasions, that, without an Assembly, there will be a drift towards what I have called de facto joint authority, not de jure—we will not see votes and things like that. What will happen? The people on this side of the water will  find themselves wanting to co-operate with others who have a more powerful economy and position in the world than Northern Ireland on its own, and that is where the drift of politics will go.
I understand the protest and the anger, and that things do not look as they were meant to and so on. But there is a sense in which Sir Jeffrey Donaldson has tried to save unionist people from themselves, in a way, and from what some of them were trying to do. There is a limit to where protests can take you, and they can take you to the point of self-destruction. At some cost to his own skin, I suspect, Sir Jeffrey has pulled things back and said, “Look, this is the best I can get. I’ve tried really hard—I honestly have—and this is absolutely the best that I can do. You may not like it and you may be disappointed in it, but I’m trying to do the best for Northern Ireland”. I think he probably has done the best that he can do, and we have to see it in that context and in the wider and longer context: the question of what the relationships will be further down the line with this country, with our other neighbours, with a changing global economy, with a changing demography in Northern Ireland and with a changing set of views among the different groups of people in Northern Ireland.
Northern Ireland is not a homogenous entity, and those people have to find a way of living together with their differences. That is a real challenge. The whole world has not found a way of living with difference, which why we are hurtling into the third global conflict at the moment. Actually, Northern Ireland is finding its way out of a conflict. It is an awful struggle, and it is very difficult and extremely painful, and it will not necessarily bring the outcome that any particular group wants. But now, and in the future, it is a place where people are not being killed, children are not being left fatherless and motherless, and parents are not frightened about their children going out for the evening because they might not come back. That is a change for the better.
For me, it is not the detail of these instruments but the symbolism that has given the possibility of getting stability within Northern Ireland, which is in the interests of all the people of Northern Ireland—albeit that almost every section and group has had to make some sacrifice and compromise in the interests of that better future.

Lord Empey: My Lords, I am pleased to follow the noble Lord, Lord Alderdice, and I will do a bit of both the things he mentioned: look at the detail and, I hope, look at the bigger picture. Northern Ireland has had to endure another two years of rudderless governance at a time of the worst cost of living crisis in living memory and of burgeoning waiting lists—the noble Lord, Lord Hain, will know that I have raised this issue so many times in this House.
I was always opposed to the boycott of the institutions at Stormont. For unionism to adopt Sinn Féin tactics never seemed to be a strategic good idea to me. Of course, I refer to the previous three-year collapse of Stormont brought about by republicans between 2017 and 2020. The big difference between those two periods of collapse has been the outcomes. Sinn Féin got what it wanted with the language legislation, while the DUP  failed to shift the border in the Irish Sea, returning to Stormont with the protocol/Windsor Framework unaltered. All this chaos is due to the disastrously negotiated Brexit deal. None of the legislative contrivances before us tonight would have been necessary had we remained in the EU, or had there been a properly prepared and effectively negotiated departure of the UK from the EU.
These SIs are bits of sticking plaster but, however well intentioned they may be, they are riddled, clause by clause, with the confirmation in the domestic law of the United Kingdom that a foreign power has already legislated for significant areas of policy in part of our country, and that the EU will continue to do so. We are actually incorporating that into domestic legislation. We are saying in these SIs that in fact we are looking over our shoulder at what the EU is going to do and how we interact with it; I will come to that a bit later.
An attempt is being made in the constitutional SI, in an amendment to the EU withdrawal act 2018, to provide assurance that further divergence between Great Britain and Northern Ireland will be avoided with an obligation placed on a Minister by Section 13C, where a Minister must make a statement that, if enacted, a Bill would not have
“a significant adverse effect on trade between Northern Ireland and the rest of the United Kingdom”.
The noble Lord, Lord Dodds, drew attention to that. This provision is completely undermined by the next paragraph, which says that if a Minister cannot make such a statement, the Government can go ahead with the Bill in any event. Can the Minister clarify for the House that this means that the Government could in future legislate even if this meant adversely affecting trade between Great Britain and Northern Ireland? That seems the inevitable consequence of the proposal.
In the Explanatory Notes to these SIs—I agree that they are sometimes the better place to look—frequent references are made to the UK’s international obligations. For example, in the EM on the constitutional status of Northern Ireland, paragraph 7.3 confirms that
“The Government remains fully committed to meeting its international legal obligations in all circumstances”.
Can the Minister confirm that this means full implementation of the Windsor Framework? Again, I agree with the noble Lord, Lord Dodds, on this: I have asked two Parliamentary Questions, I have been fobbed off, and that is entirely unsatisfactory. I hope that we can have a debate on this, because there is a whole area on the Windsor Framework—we are finding it in your Lordships’ Committee—where we are not getting responses quickly enough. We got one today two years late. There is a huge issue of parliamentary accountability there.
Paragraph 7.1 points out that the protocol
“raised concerns over the status of Northern Ireland”
in the United Kingdom, but in response the Government negotiated the Windsor Framework with the EU, and that agreement is now being implemented. Paragraph 7.13 again excludes any
“decisions or agreements made under the existing Windsor Framework”.
It is therefore essential to know whether the Windsor Framework has been changed and, if so, in what way? Can the Minister confirm that and will he point to the relevant text of such changes? I mentioned the Parliamentary Questions and I will probably want to come back to those at another time.
Paragraph 6.2 of the internal market EM, in the “Legislative Context” part, again qualifies the Government’s intentions with respect to their international obligations. Parliament can judge the effectiveness of these SIs only in the context of how His Majesty’s Government see and interpret their international obligations. Will the Minister clarify this for the benefit of Members?
With regard to the internal market SI, reference is made to goods in transit between Northern Ireland and GB going via the Republic of Ireland, and goods coming from Northern Ireland to GB where a load may contain products from the EU travelling via Northern Ireland. Can the Minister tell the House how such mixed loads are to be handled, whether they enter Great Britain from the Republic of Ireland or from Northern Ireland with mixed loads?
I appreciate that some of these issues are quite complicated, and I fear that His Majesty’s Government may not have worked them all out yet—shock horror at such a prospect. However, we must have answers. That being the case, I am sure the Minister will write to me and other Members with detailed answers in due course.
I have touched on only a few issues; there are so many one could mention. Nearly two years ago, I was part of an Ulster Unionist Party delegation that went to Brussels. I remember it very well, because it was the day that President Zelensky addressed the European Parliament. It was a very emotional day. Later that day, we spent 90 minutes talking to European Commission Vice-President Maroš Šefčovič. During that discussion, he said he could get rid of 95% of the checks that were being performed. That was his figure, and that was two years ago. Negotiation with the EU from a functioning Stormont and improved relations with the EU were perfectly capable of delivering change without the blunt instrument of boycott and collapse of the institutions.
Further than that, we have to be honest with the people of Northern Ireland about what has been achieved by these measures and the accompanying documents. The aims of the boycott, as I understand them, were to eliminate a regulatory border in the Irish Sea, remove the remit of the ECJ in Northern Ireland and prevent the imposition of EU laws and regulations in Northern Ireland, as this would mean a foreign power making laws for Northern Ireland without the ability of the Northern Ireland Assembly or Westminster to stop this. As far as I can see, none of these objectives has been achieved. The border in the Irish Sea remains, the role of the ECJ is unchanged, and Brussels law continues to apply to Northern Ireland and will do so into the foreseeable future.
Like other Members of this House, I spent some time this afternoon as a member of your Lordships’ Sub-Committee on the Windsor Framework. We looked at page after page of detailed correspondence with His Majesty’s Government dealing with proposed  EU regulations to be applied in Northern Ireland, and letters to and from Ministers to that effect. In fact, I discovered that in the cc list on some of the ministerial letters, one of the recipients of this communication is the EU document scrutiny manager. Such a person exists. The idea that, somehow or other, there has been some miraculous change, is false. We are integrated into the EU law and regulatory system by dint of the agreements and legislation that have already been passed. That, of course, was the decision of this Parliament.
In this House, we criticised the former Northern Ireland Secretary Brandon Lewis, who said there was no border in the Irish Sea. Last year, we criticised the Prime Minister because he made similar claims. I am very surprised and disappointed that Sir Jeffrey Donaldson and some of his colleagues are saying the same thing today. They must have taken leave of their senses if they have come to that conclusion. It is nonsense. The border is there now, and these SIs are now further woven into domestic law.
I understand that people will always try and oversell what they have achieved—we have all done it. However, these claims, far from being the spoils of victory, are anything but. In many respects, it has resulted in a significant defeat. I also note that two years ago, when the rallies against the protocol started, people came out in towns like Markethill in the freezing cold to join a platform to protest—perfectly legitimately—about the protocol and its impact constitutionally, and potentially economically. We have heard reference to the platform party already. Many of us could see then that the platform party would not survive any length of time. Difference was inevitable. How many times have loyalists been marched up the hill to be marched down again? It happens again and again—and now it has happened once again.
I was a bit perturbed by my noble friend Lord Bew’s comments on how the negotiations to get the Assembly back were conducted. I make it clear that, despite the reference in some of the documentation to other parties being engaged, my party was not engaged in the discussions and negotiations. There were a couple of perfunctory meetings, including one with officials, at a very late stage, but we were not part of the negotiating process. Had that attitude been adopted, we never would have had the Good Friday agreement or some of the other deals that were done. People must be engaged so that they have ownership of what comes out of it. This back-stairs stuff has all been done before, and we have all been engaged in it, but it does not work in the long term.
My noble friend Lord Bew put this matter in the context of a series of documents, and I take his point. He also made a very valid point about the Acts of Union. Drawing from our conversation, I got some material pertaining to the Acts of Union, particularly the schedules, which are very shocking to read in today’s context. We use phrases that unionists like to hear: “copper-fastening” the union and “future-proofing” the constitution. But this Parliament could not future-proof the lock on its Door, because one Parliament is not bound by what another one does. If the Acts of Union, when they were enacted by 1801, were such a great piece of kit for unionism, why is it that there is  an Irish Republic? If that document was supposed to protect a unionist in Dublin, it did not work very well. If the referendum in Scotland found that one more person voted to leave the United Kingdom than voted to stay in it, the Acts of Union with Scotland would have had no impact whatsoever on the unionists of Scotland.
The only way you can preserve the union is to ensure that there are more people on the ground that want it than do not want it. Everything one does, as a unionist, should be engaged to maximise the number of those people. No Act of Parliament and no statement from a Minister will do it. So I feel that people have been led up a trail that has no prospect of success.
I am against the boycott and was always against it; I think that it was a strategic mistake. However, another strategic mistake has been made in mis-selling it, and misrepresenting what it is trying to achieve, to the people they are trying to convince. If they are not lies, very significant misrepresentations are certainly being propagated, and people will find that out. Examples such as the flowers that the noble Baroness, Lady Hoey, mentioned do not matter; it used to be bendy bananas in the days when people were attacking the European Union. There will always be something—I accept that—but let us not get focused on something that is irrelevant to the long-term preservation of the union.
The only thing that will preserve the union is making the case and ensuring that there are more people in Northern Ireland who want it than do not. As far as I am concerned, everything we do in this place should be measured in that way. I appreciate that a lot of work and negotiations have gone into these SIs—they have probably been done with the best of intentions—but trying to keep these things secret and bounce people at the last minute is not the right way ahead.

Baroness Foster of Aghadrumsee: My Lords, I hope to change tack a little and bring a bit positivity to the debate. I say to the noble Baroness, Lady Hoey, that I hope that Mr Foster has gone to somewhere other than a supermarket to get his flowers for tomorrow.
I say to the noble Lord, Lord Alderdice, that I listened very carefully to what he had to say; it is not the first time that he has made his de jure and de facto point about joint authority. I was pleased to see that that issue is addressed in the Command Paper. It is said that there is no halfway house: we are either in the United Kingdom or we are not.
I agree with the noble Lord, Lord Empey, that it is important that people in Northern Ireland recognise the advantages of being in the United Kingdom. We need to focus on making that point more strongly, particularly because of his point about the so-called third community, which a lot of people speak about now. For me, that is the critical point—to say to people in Northern Ireland that you are much better off within the United Kingdom than leaving the United Kingdom.
Much has also been made of the DUP and Sinn Féin leaving the Executive and collapsing the institutions when I was First Minister. Of course, that was not the  first time that the institutions collapsed. They collapsed in 2002, and for understandable reasons at the time as well, not coming back until 2007. This is not the first time that the institutions have collapsed. It is important that we find a sustainable way to keep the institutions going, but for that to happen, I go back to the issue of both communities. I know that it is not the issue that the noble Lord, Lord Alderdice, wants me to address, but it has always been the case that we need to bring everybody along with us. I hear what people are saying about Brexit and people have raised those issues, but the difficulty about the protocol is that it did damage to those east-west relations and therefore caused that rift which led to the issues that brought us to where we are today.
The noble Baroness, Lady O’Loan, referred to the 1998 Belfast agreement. The problem is that the agreement was ruptured by the protocol. That is why we ended up where we were. In passing, she also made references to reconciliation. We would all love to see genuine reconciliation in Northern Ireland, but I despair a little when I hear the now First Minister say that there was no alternative to murder and mayhem happening in Northern Ireland over a period. I regret that, and it is absolutely wrong that it was said in the way that it was said.
There is a lot of noise about the fact that one party, the DUP, was involved in negotiations and no one else. No one else took up the cudgel to deal with the issues that were there. Other people wanted rigorous implementation of the protocol. They did not want to step up and take on the issues that were so obvious to everybody in and outside Northern Ireland. I hear what has been said, but this all came about because there was a break with the fact that unionist people in Northern Ireland simply could not abide by what was there. If we want to see Stormont work, both communities must be involved. It is important that we recognise that.
Sometimes those of us from Northern Ireland who travel to this place will complain about our journey. I was thinking about that this morning as I was travelling over, in the context of this issue and the fact that we are discussing it tonight. I was thinking about the architect of our modern United Kingdom, namely Viscount Castlereagh. As Chief Secretary for Ireland, he ensured that the Act of Union was put in place and therefore since 1801 politicians been travelling to this place and the other place to advocate, first, for Ireland and, now, for Northern Ireland. It was a different journey to that which I undertook; I had a very nice journey this morning. Castlereagh is mentioned in the Command Paper. I very much welcome that because at long last, something that was promised in 2020, in New Decade, New Approach, is going to be delivered. It is important that we have a foundation to explore identity and history from an academic point of view and to honour Viscount Castlereagh’s legacy. I very much welcome that it is there.
I welcome the repudiation of this notion of an all-Ireland economy. I am grateful for the points made by the noble Lord, Lord Bew, in relation to this. It did come about in that joint report, but it did not just appear. It came about because civil servants in Northern Ireland were tasked to look at cross-border co-operation.  Cross-border co-operation happens for all the right reasons. Some of it is very sensible, but somehow that was conflated into an all-Ireland economy, and that is not the case.
I am glad that that is repudiated in this document, and that we are seeing a sensible way forward, because Northern Ireland remains an integral part of the United Kingdom constitutionally and politically, and important from an economic point of view in the UK internal market. We are in the UK internal market and we have access to the European single market. I have heard other areas saying: “We only wish that we could have that for our part of the United Kingdom”. I have heard people say as well: “Northern Ireland did not vote for Brexit”. That is right, but we are part of the United Kingdom, which did vote for Brexit. That is the point. Now we have the internal market of the United Kingdom but access to the single European market. Yes, there are difficulties associated with that, and we have to acknowledge them.
When I spoke about the Act of Union previously, the Minister pointed out to me that the Act of Union had changed. I think the noble Lord, Lord Empey, has referenced that as well tonight, not least in relation to partition. The noble Lord and I were talking about the disestablishment of the Church of Ireland at that time, which I was saying was a real shame. In any event, there is no doubt that the union of the United Kingdom has evolved over this past century. What unionists and those who really care about economics wanted to see was that internal market of the United Kingdom working properly. I am pleased that that has been addressed; I know there are difficulties and there are still challenges ahead in relation to that. I accept all the points that my noble friends have made, but, given that, can the Minister indicate when we might see the creation of the east-west council, which will then allow for InterTrade UK to be set up, and also the independent monitoring panel? Those bodies will have a key role going forward, looking at where the challenges are and dealing with those challenges. For me, those bodies are key to the future of what happens here and, indeed, what happens in Northern Ireland.
As is often the case, good work has been done; there have been gains, but, as we say in my part of the world, eaten bread is soon forgotten. We need to be constantly vigilant against those who seek to harm the United Kingdom for their own narrow ends, and therefore I look forward to those bodies being set up. I hope that the Minister will be able to give us some clarity in relation to that.

Lord Browne of Belmont: My Lords, the two statutory instruments before us tonight are supposedly designed to protect the union and to promote the free movement of goods. I contend that both these regulations fall well short of meeting their objectives. It is clear that the Northern Ireland protocol remains largely intact. The Irish Sea border remains largely in place and, ultimately, the European Union has the final say in many significant areas in Northern Ireland. Indeed, Ministers and Assembly Members in Northern Ireland will be expected by law to adhere to, and implement, new laws that are made in Brussels, not in Belfast, and not here in London.
As I have said consistently in your Lordships’ House, the Windsor Framework does not make substantive legal changes to the Northern Ireland protocol and the supremacy of European law on many aspects of Northern Ireland. Very little in these new arrangements would contradict that view. Indeed, this deal and the framework that underpins it, make only a few limited changes. The Windsor Framework and the withdrawal agreement itself do not permit any changes to essential elements. It would be wrong to suggest that recent changes amount to substantive legal changes.
Fundamentally, the root cause of the problem with the Northern Ireland protocol and with these arrangements is the continued application of EU law in Northern Ireland—particularly in the circumstances in which it covers all manufacturing of goods in Northern Ireland, regardless of whether those goods are being sold in the United Kingdom or to the European Union. The vast majority—84%—of all goods manufactured in Northern Ireland are sold here in the United Kingdom.
The complex easings referred to in the Windsor Framework are limited in number. They will not directly help small or medium-sized traders and are not available to all businesses. The schemes will remain incredibly complex and, crucially, the EU retains a right unilaterally to withdraw its trusted trader system underpinning any new arrangements.
We arrive at a point where the Irish Sea border remains in place, according to the former Northern Ireland Attorney-General John Larkin KC. Paperwork will still be required for customs purposes and, as we can see back in Northern Ireland, customs or border posts are currently being constructed.
Northern Ireland will continue to be treated as an EU territory in many ways. Under Article 12 of the Northern Ireland protocol, which remains unchanged, the EU can direct UK authorities at ports. It is clear that we have not yet arrived at a point where friction has gone and there are zero checks and paperwork for goods from Great Britain destined for Northern Ireland. However, we must continue to work towards achieving this. While I welcome that some progress has been made here, there is still a long way to go.
To date, we have not seen evidence that the thousands of pages of EU law have been disapplied. Northern Ireland will continue to remain subject to the power and control of EU law, the European court and the European Commission on EU single market laws, which govern the manufacture and sale of goods in Northern Ireland. In some 300 areas, EU jurisdiction applies in Northern Ireland. It is a fact that Northern Ireland producers and consumers will still be subject to foreign laws, even when they do not trade with the EU at all.
To date, there is no evidence that points to a single EU single market law being removed from Northern Ireland.

Lord Bew: I just wish to ask the noble Lord, Lord Browne, why, if EU law is so important, it is not mentioned in the seven tests that went before the electorate in Northern Ireland last year as the DUP’s position. I understand the sentiment behind what he  says about EU law, but why was it not mentioned in the seven tests? Which of the seven tests does he think has not been met?

Lord Browne of Belmont: I assert to the noble Lord, Lord Bew, that this is referred to in our first objective:
“The Irish Sea border must go”.
This Government pledged to protect and strengthen the UK internal market as part of New Decade, New Approach. We said that this will involve the European Union.
Regrettably, the Stormont brake, if successfully applied, would apply only to future changes to EU law. It provides no right to change any part of the existing EU laws imposed on Northern Ireland under the protocol. The brake allows for an objection to be raised to a new or amended EU law but, ultimately, the final say on its application would not be a matter for the Assembly, Executive or even this sovereign Parliament. The final decision would rest with an international body that can decide whether a new EU law applies.
The brake is also of limited application in theory and is likely to be unworkable in practice, as such a high bar is set. As I have said previously in your Lordships’ House, I cannot envisage a scenario in which a future British Government would seek to apply a brake if it meant a retaliatory action from the EU. Northern Ireland remains governed by many EU laws that we did not make and cannot legally change. There remains no consent for arrangements that will see further EU regulations causing Northern Ireland to diverge from the rest of the United Kingdom.
The rights of the people of Northern Ireland under the Act of Union 1800 have not been fully restored. While I welcome some government promises—indeed, I welcome any future legislation that will bring us closer together as a nation—there is some way to go before we can say that these issues have been adequately addressed. These arrangements, much like the heralded launch of the Windsor Framework last year, have ultimately failed a key test: to legally restore the constitutional integrity of the United Kingdom.
Finally, I would like to make it quite clear that our party, the Democratic Unionist Party, is not against the Assembly. We have been pro-devolution when many other unionist parties were vehemently integrationist —they did not want any Assembly. However, the point I am trying to make is that the Assembly must be sustained on the basis on which it was set up. That is on a cross-community basis, with the balance of the various strands of the agreements respected. That is not the case with the protocol, or the Windsor Framework document that is in force.

Lord Hay of Ballyore: My Lords, it is a pleasure to follow my noble friend Lord Browne. I want to say at the outset that I have been listening to the debate very attentively; I have listened to a number of speakers. I believe in and welcome the restoration of the Assembly in Northern Ireland. My personal  view is, and has been for some time, that, for now and the future, we need Northern Ireland to work to protect the union, because we can convince people to vote for the union only with a Northern Ireland that is settled within itself. So I welcome the establishment once again of the Assembly.
Over the last number of years, many of us here in this House and in the other place have campaigned to seek significant changes to the arrangements first agreed by the United Kingdom Government in 2020. If we are being honest, the agreement reached with the Government, and the package of measures negotiated, go much further than previous agreements to undo the harm and damage of the deeply flawed Northern Ireland protocol. The new arrangements go a long way towards safeguarding Northern Ireland’s place within the United Kingdom.
I have always believed that there should be no barriers to trade or tax within this United Kingdom and its internal market. While some limited progress was undoubtedly made at the time of the Windsor Framework, the Northern Ireland protocol was not significantly dealt with then. The Windsor Framework made only limited changes to the protocol. Unamended, it was clear that a full range of customs checks and formalities would remain for many businesses importing goods from the mainland to Great Britain.
As a result of the stance my party took, the Government and the European Commission came back to the negotiating table. We judged that more work was required if we were to reach the point of securing arrangements that unionists as well as nationalists could support.
There is a great argument for why we did not involve other parties in these negotiations: they did not want to be involved. In fact, these were the parties that were very clear that we should implement the protocol in full. They stood outside the door and said: “No, no, no, we’re not involved, but we want you to rigorously implement the protocol”. That was their answer, right from day one until now. It is nonsense that we should have involved other parties—it did not happen because they shut themselves outside the door. Let us bring a bit of honesty to the debate.

Baroness Ritchie of Downpatrick: I think I was quite clear in my comments that I was referring to the tone of the Command Paper, which involved only one party with the British Government, which represented a major departure from negotiations that had taken place in the past.

Lord Hay of Ballyore: We got the clear impression that that was exactly what the other parties wanted. They complained outside the door but did not really want to come inside, and that was the theme right through the negotiations. As I said, a wee bit of honesty in the Chamber would certainly help the debate.
There is still some way to go. I believe the package of measures negotiated, including the legislation before us and the assurance from the Government regarding further legislation, will make a real difference in Northern Ireland. That is my personal view. In all these issues   we have to wait to see the workings of this on the ground, which will certainly tell the tale of whether it is working. The jury is still out on a lot of these issues and on how we deal with some of them now and in the future.
It should not have taken the withdrawal from the Assembly and the Executive to get the UK Government to act to protect the union. It was only because this action was taken that negotiations were reopened and these new arrangements were brought before your Lordships’ House. I remember that for two years we said to the British Government and the European Union that the protocol was not working and that we needed to deal with certain issues in the protocol. They totally and absolutely ignored us while we were working in the Assembly. My party leader has been criticised here tonight by the noble Baroness, Lady Hoey, and some other people, which is totally and absolutely wrong. Their assumptions on the issue need to be challenged.
We said to the British Government and the European Union that there are real difficulties here. The real difficulty is that this has been done over the head of unionism. It needs to be addressed. If we are to have agreement in Northern Ireland, there has to be agreement on both sides of the community. The European Union and the British Government ignored that. There was no choice for my party leader, Sir Jeffrey Donaldson, but to pull the First Minister out. Once again, let us be absolutely clear and get the facts right. Let us not think of these issues but get the facts right. If we could have done this without pulling the First Minister out, we would have done it, but it was not going to happen.
Progress has been made, and I welcome the fact that we now have a functioning Northern Ireland Assembly back. The Assembly now has a backlog of work and has to prove to the people of Northern Ireland that it can deliver. It is my hope that a new starting point can provide a solid basis for future devolved government in Northern Ireland. There is more work to be done. It does not stop here. That is vital.
I hope the Government have learned the lesson, because it took some time to build trust with this Government. There was a total lack of trust in this Government from within the unionist community. We can go back in history to former Prime Ministers letting us down and all that—saying one thing and doing another—so it took us some time to build trust in this Government. I hope we have now built that trust.
I want to say in closing that it is time for unionists to get on the front foot rather than indulge in wishful thinking. We can bank the gains and campaign for further progress while addressing the bread and butter issues that matter to the people of Northern Ireland; or we can throw them away without a strategy in the hope of securing the untenable. I have been in the unionist cause for over 50 years; I am not a Johnny-come-lately to this cause. There are some people in this Chamber who have come late to the cause. I have not, and there are many colleagues here like me who have been fighting this cause for well over 50 years.

Lord McCrea of Magherafelt and Cookstown: My Lords, I am delighted to follow the noble Lord, Lord Hay. At the commencement, before I deal with the two statutory instruments, there are some things that have to be said in reply to some of the charges that have been made against us.
The noble Baroness, Lady Ritchie, seems to be concerned about the tone of the Command Paper. I remind her that it has no legislative force. We are dealing with the two statutory instruments, which are vital. The Command Paper is important to set, as it were, the backdrop to what is being sought to be done.
I understand the point that the noble Lord, Lord Alderdice, is making: he hopes that the new arrangements will allow that never again will anyone be killed or children left without their parents. But I have to say, and he will agree with me, that there never was a reason why anyone was to be killed, or was killed, or any child was left without a father or a mother, or parents left without their children.
The noble Lord, Lord Bew, challenged my noble friend a few moments ago concerning the seven tests. Like many others whom I have listened to, he has tried to interpret the DUP’s seven tests. We set the tests. We know exactly what those tests meant. We know their interpretation. The first test is the fulfilment of Article 6 of the Act of Union. The Supreme Court has ruled that this is suspended because EU law takes precedence through Section 7A of the European Union (Withdrawal) Act 2018. It is therefore wrong to say that our test did not require EU law to be lifted from Northern Ireland. Noble Lords need only listen to the statements and speeches, and to read the articles written by leading spokesmen of the Democratic Unionist Party over the last two years to know that the issue of EU jurisdiction was vital to our manifesto commitment. I say to noble Lords: no, we will not allow others to rewrite the meaning of our tests.

Lord Bew: Was EU law mentioned in the DUP manifesto? It is definitely not mentioned in the seven tests—there is no doubt about that—and it is a rather contorted argument about the Act of Union implying this.

Lord McCrea of Magherafelt and Cookstown: In speech after speech, article after article, statement after statement, from our party leader and from our chief spokesmen on these issues, it was constantly said. To suggest that it was not a vital part is not factual. I will not allow to stay on the record a charge made against us that is not factual.
It is also true that the majority of Northern Ireland voted to remain in the EU; that is a fact. But so did the majority in Scotland, so did the majority in London, and so did the majority in other regions and parts of the United Kingdom. It is interesting that no one suggests that those counties or regions should be subjected to foreign laws and the special arrangements ordered by the EU that we are expected to accept.

Lord Alderdice: I wonder if I might just respond to that point. It seems to me that Northern Ireland, Scotland, Wales and England are important separate  jurisdictions with their own statute books and so on. That is not the case for some of the other areas that the noble Lord refers to. The point I was making was that when people talk about the people of Northern Ireland wanting this, that and the other thing, one of the things that they did not want—it is right that the Scots did not want it either—was to leave the European Union, with all the consequences. That was the point.

Lord McCrea of Magherafelt and Cookstown: I accept what the noble Lord is saying. Are he and others suggesting that Scotland should get the same as we got and that it should receive the same benefit that we are told we have got? I know in fact that Scotland has been suggesting it should be getting it, because it thinks we are getting something that it did not get. You cannot have it both ways. The parties across this House that have been in government, those leading parties in this House, realise that the United Kingdom went into the referendum as a United Kingdom. We went into Europe as a United Kingdom. We were withdrawing as a United Kingdom—not parts here and parts there. It is not a patchwork quilt that we are talking about. We are talking about the rights of the peoples of the United Kingdom to make the decision. Just because some people do not like the decision that was made, they cannot suggest that it was not done in a democratic way.
The Northern Ireland protocol cut our Province off from the rest of the United Kingdom economically and handed political power over a part of the United Kingdom to the EU. Because of this, the DUP and my party colleagues refused to implement a policy that deliberately undermined our precious union and our right to trade on the same footing as Great Britain. I stand by that decision without apology. The Northern Ireland Assembly was suspended and did not function for two years. It was only through the actions of the DUP that the Government and the EU sat up and listened to the legitimate concerns of unionism. Up to that moment, they seemed to have only one concern—to listen to the endless demands of republicans.
Now, after two years, the Government have produced the Command Paper Safeguarding the Union and the two statutory instruments we are debating today, but there are questions that must honestly be asked and answered. Do these fully address the issues confronting unionists? Do they, for example, stop the damage done by the Northern Ireland protocol and the Windsor Framework with reference to the free movement of trade between Northern Ireland and Great Britain, and do we now have the right to trade on the same footing as GB? Do they restore the constitutional rights to the people of Northern Ireland that have been totally undermined by the protocol and Windsor Framework, and have they restored our equal citizenship as British citizens, which has been eroded?
We were told that these measures were vital for the restoration of the Northern Ireland Assembly, but how does this equate with the Assembly being already restored before we in your Lordships’ House were granted a chance to scrutinise or debate one line of their content or their ever becoming law—because they are not law. We have to debate and pass it here.  Therefore, how did this happen? One has to ask what was the undue haste—or was scrutiny of the details contained in these SIs the last thing the Government wanted before the Assembly was restored?
I place on record my appreciation for all the hard work that was done by my colleagues over many months and the due diligence that they applied to their labours, but I have no doubt that intolerable pressure was exerted on them by the Prime Minister, the Secretary of State for Northern Ireland, the NIO and, no doubt, the Irish Government—although the internal affairs of Northern Ireland are not the business of the Irish Government—to get the Executive up and running. Indeed, we had an example of the Government’s panic when the Secretary of State used the £3.3 billion as bait and deliberately withheld the rightful pay rise from our hard-working public sector workers, seeking to create a crisis. In my opinion, again, such an action was despicable.
Now, there is breaking news today. We learn that the Stormont Executive have been told by Westminster that they must raise at least £113 million of their own revenue in their next budget, and that this was a part of the £3.3 billion funding package. Is it not strange that we were not informed of those details until now? There is an old adage: “All that glitters is not gold”.
Over the weekend, an article was published in Northern Ireland media by the Belfast News Letter—written by three of my esteemed colleagues, two of whom are in this House—pointing out that scrutiny of the SIs before us today confirms that the border in the Irish Sea remains. I can tell the House that the genuine concerns expressed by my colleagues have already been expressed not only by myself but by the greater number of the parliamentary party, a majority of the Members of the House of Lords from my party, and indeed a number of MLAs. These concerns cannot be cast aside or overlooked but must be honourably answered, for they will not go away. Relying on promises made by a Government who have broken so many promises before will not suffice. We all know that the outworkings of these SIs will be evident for all to see, and no amount of flannel or spin from the Secretary of State or any other Minister will wish away the facts that the people see before their eyes.
I ask the Minister to tell the House if the green lanes legislation has gone or if it is completely untouched by these SIs. Is it true that, under the current legislation, companies moving goods outside the red lane must have an export number and must be subject to customs and SPS border paperwork, as well as subject to 100% documentary checks and 10% identity checks, moving to 5%? That is what Regulation 13(2) of the Windsor Framework (Retail Movement Scheme) Regulations 2023 requires. Lest anyone should doubt me, Regulation 13(2) states:
“From the date specified in the first column of the table below, the Northern Ireland competent authority must carry out an identity check by breaking the seal on at least the percentage of consignments of specified retail goods moving into Northern Ireland under the Scheme specified in relation to that date in the second column of that table”.
The minimum percentage of consignments on which identity checks must be carried out are, from 1 October 2023, 10%; from 1 October 2024, 8%; and,  from 1 July 2025, 5%. Meanwhile, Regulation 12 requires 100% documentary checks. That is what the law requires—a law that I believe the SIs before us today, whose purpose is to give effect to the deal, do not amend, let alone appeal. I want the Minister to tell us whether or not that is true.
Companies moving goods from Wales do not have an export number. They do not have to fill in customs paperwork, simplified or otherwise. They are not subject to 100% documentary checks, and they do not have to go through border control posts where they are subject to identity checks of between 10% to 5%. Crucially, before 1 January 2021, companies moving goods to Northern Ireland from England, Wales or Scotland similarly did not need an export number. They did not need to fill in customs paperwork or be subject to 100% documentary checks and 10% to 5% identity checks at border control posts. The reason was very simple. At that time, Northern Ireland was not cut off from the rest of the United Kingdom by the Irish Sea border—a border that I fear the deal before us leaves in place. I ask the Minister: is this scenario as I have outlined it right or wrong? We do not need waffle, we need answers.
I notice people pointing to their watches, but this is the first time I have had the opportunity of looking at this in the House of Lords, and I am taking my time to deal with a matter that is so important to the people who live in Northern Ireland.
The protocol/Windsor Framework was designed to make special provision for Northern Ireland that was not made for the rest of the United Kingdom. While I welcome the east-west council, the greater flexibility in dealing with rest-of-world goods, and the commitment from the UK Government to stand with us if the EU refuses to move veterinary medicines, none of those things removes the border or restores Article 6 of the Act of Union, which remains as partially suspended today as it was this time last year.
Without apology, I am a unionist. That means that I prioritise the relationship between the different nations that occupy these islands. It means that, if borders have to divide us, I am on the side of the border that is in a relationship with England, Scotland and Wales, for it was not unionism that divided the island of Ireland but nationalism.
There has never been any question that some businesses have prioritised having no border to interrupt the flow of goods between Northern Ireland and the Republic of Ireland. But the idea that business as a whole prioritises the free movement of goods between Northern Ireland over the free flow of goods between Northern Ireland and the rest of the United Kingdom is difficult to sustain in the context where most of the goods flowing into and out of Northern Ireland come from the United Kingdom.
In a world where one cannot have unfettered border-free access to both the rest of the United Kingdom and the Republic of Ireland—indeed, if we could, this deal and the SI before us would have delivered it—then unionism exists to promote unfettered access with the rest of the United Kingdom. This deal prioritises something entirely different: unfettered border-free access to the Republic of Ireland, and fettered, bordered  access to the rest of the United Kingdom. As I  have said, I believe that there is still a border in the Irish Sea.
We must not forget that the existence of a border is a function of the more profound dividing of Northern Ireland from the rest of the United Kingdom, and its insertion in a different governance structure and subjection to the same laws as the Irish Republic in some 300 areas, rather than those of the United Kingdom—laws that are imposed on it from outside. I know that Parliament is sovereign, but simply telling us that does not make matters better, only worse. It tells us that even though Parliament has the power to insist that 1.9 million UK citizens are left to abide under 300 areas of law over which they have no influence or power to amend, His Majesty’s Government are happy to leave them as second-class citizens without the right to stand for election to try to stop some of the laws imposed on them by a foreign power.
The EU might prefer this way to protect the integrity of its single market, but in a context where another way of dealing with the issue exists—the mutual enforcement that my noble friend Lord Morrow mentioned—that does not involve the largest disenfranchisement exercise in the history of the western world or violate the consent principle of the Belfast agreement, and that does not involve disrespecting the territorial integrity of the United Kingdom, no responsible UK Government could ever countenance settling for anything less.
In conclusion, previously when we had a Statement in this House I asked the Minister a number of questions. He indicated then that he would answer when we came to these SIs, so he has certainly had plenty of time to prepare the answers. Does Northern Ireland remain under EU single market laws for production of food and agri-food? Do His Majesty’s Government believe that the Irish Sea border has fundamentally been changed and has the EU agreed? Is there a fundamental change to the Windsor Framework or is it still fully operational? Will Northern Ireland be able to enjoy UK state aid, like every other part of the United Kingdom, without reference to or interference from the EU?
We desperately need, out of regard for truth, to be honest with the people of Northern Ireland about the situation that we face, and we are facing challenging times. I renew my call to fellow unionists, not only in this House but across Northern Ireland, to be faithful to their conscience and convictions but to be respectful to those with differing views. I have no doubt there are those who want to weaken and destroy unionism but together we can stand strong. I also believe that it is vital for all the people of Northern Ireland to enjoy the benefits of our precious union.

Baroness Suttie: My Lords, like the noble Baroness, Lady Foster, I will try to inject a little positivity into what has been a very long and unfortunately rather negative debate, although I understand the many comments and justifiable criticisms made by the noble Lords opposite. Given the hour, I shall also endeavour to be brief.
I start by greatly welcoming that the institutions in Northern Ireland are once again up and running. That is an achievement and it needs to be celebrated. From these Benches I commend the political leadership and courage, and the ability to see the bigger picture, that have taken us to this point—not least the personal drive and commitment shown by the Minister himself. It is still early days, but I believe there are grounds for optimism that this time the Assembly will continue  to sit.
The people of Northern Ireland are entitled to expect a period of stability, so that the many health, educational and economic crises can begin to be addressed. Before I turn to the details of the regulations I would like to recall, as other noble Lords have done, that we are facing all these highly complex issues, and the equally complex set of proposals and solutions in front of us, because of Brexit. I felt that the noble Lords, Lord Bew and Lord Hain, made that case extremely powerfully in tonight’s debate.
A colleague was reminding me just the other day of the excellent report on Brexit and the island of Ireland that the EU Select Committee of your Lordships’ House published way back in December 2016. That report so accurately anticipated so many of the issues that we are still trying to tackle, nearly eight years on from the EU referendum.
I would also like to commend the excellent job done by the Northern Ireland protocol committee, now the Windsor Framework committee, of this House. Several noble Lords referred to it and several are indeed members of it. It has done so much to scrutinise the realities being faced by Northern Ireland on these issues. No matter which of the latest solutions we are debating, I have always felt that it is the elected politicians in Northern Ireland who are best placed to find pragmatic solutions. They are also in the best position to resolve any continuing barriers.
This evening, so much of the focus has been on the understandable concerns about unfettered access and trade between Northern Ireland and Great Britain, but perhaps too little is made—at least in this Chamber this evening—of the potential opportunities offered by joint access to the EU market.
In that regard, it is important that the Stormont brake is considered only as an instrument of last resort. It is important that the recently restored Northern Ireland institutions have a strong dialogue with Brussels and are in a position to flag potential issues as soon as possible. Can the Minister say whether he has had conversations with the Executive to investigate mechanisms for ensuring that effective dialogue takes place with the EU at an early stage in the process? It is extremely important that maximum attention is given to particular concerns facing Northern Ireland businesses at an early stage of the decision-making process in the EU.
Turning to the regulations themselves, the excellent short report from the Secondary Legislation Scrutiny Committee on these regulations—as quoted by the noble Baroness, Lady Ritchie—states:
“Given the complexity of the interaction of two regulatory systems in NI, we note the importance of the forthcoming guidance to provide clarity to businesses and other stakeholders on how the new arrangements should be applied in practice”.
When does the Minister expect that this additional guidance will be published? Can he give continued reassurance about ongoing consultation with both the Executive and Northern Ireland businesses to ensure that this guidance is as effective and user friendly as possible?
As the noble Lord, Lord Hay, said in his very powerful speech, the devil will be in the detail on how these new mechanisms will work in practice. In a similar vein, can the Minister say when he expects further details and guidance to be published on how the new independent monitoring panel, InterTrade UK and the new east-west council will operate in practice? As other noble Lords have asked, how will they work with existing institutions?
It is also very important that other parts of the UK understand these new bodies and regulations and understand how they will work. This is particularly true for the business community and the rest of the UK Civil Service. Does the Minister anticipate a communications plan to ensure that the details set out in the Command Paper, as well as the future guidance, is widely understood by relevant stakeholders across the wider UK?
In conclusion, I believe there is every reason to be optimistic, despite the many speeches this evening. But we need to learn from the lessons of the recent past. We need to see a return to trust and inclusiveness in Northern Ireland politics.

Lord Murphy of Torfaen: My Lords, it has been a long night, but an important night. I hope there will be another debate in the not-too-distant future which will allow more Members of your Lordships’ House to take part on this important issue. The Opposition support the statutory instrument, as we support the deal done by the Government and the DUP. I add my own congratulations to the Minister personally, to his boss the Secretary of State and, of course, to Sir Jeffrey Donaldson and others involved in the negotiations in the last months.
It is significant that this is probably the first major debate we have had on Northern Ireland that has not been about emergency legislation and giving powers to civil servants. It has not been about bringing down the Assembly because of what has happened over the last couple of years. It is very positive in that respect. We are talking about the restoration of those institutions of government in Northern Ireland, and the Executive and Assembly in particular. That is hugely significant. I take the point about the money—it is the Treasury again, I suspect—but we will have an opportunity to debate that in future weeks. It is great news for the people of Northern Ireland, whatever their background and community, that they now have democratic government restored. For that, all of us, I am sure, should be grateful.
The noble Lord, Lord Bew, in an extremely interesting contribution to tonight’s debate talked about the Act of Union—which was a long time ago—and how that was not set in stone over the centuries. If you look back at it since 1801, particularly in the 20th century when there was the old Stormont Parliament, of course there were customs regulations. When I was an Opposition  spokesman on Northern Ireland, there were customs regulations on agriculture and horticulture coming from Great Britain into Northern Ireland. It is not new, and the idea that somehow or other Northern Ireland should not be different really is nonsense, because Scotland and Wales are different and Northern Ireland is different in all sorts of ways.
The issue is that it is different within the context of our leaving the European Union; of course I understand that. The noble Lord, Lord Alderdice, and my noble friends Lord Hain and Lady Ritchie all mentioned the fact that Brexit caused it. Whatever our views on Brexit—and I was very much a remainer, and I am deeply disappointed that my country, Wales, did not vote to stay in the European Union—it was Brexit that caused this and there are two points about that I want to make.
The first one is that the majority of people in Northern Ireland voted to remain. I agree that the law is quite clear: you leave as a whole, as the United Kingdom. But it is the only measurement we have of what the people of Northern Ireland thought about the whole idea of Brexit. The second one is that I and lots of politicians failed when those Brexit referendum debates were going on to actually deal with the issue of Northern Ireland and Ireland; we were all to blame for that. We did not realise—I certainly did not—that the turmoil that would result in Northern Ireland and the island of Ireland as a consequence of Brexit would lead to the protocol and to the Windsor Framework and to this.
It is quite clear why we were in this mess and why we still have a long way to go to assuage people in Northern Ireland on the unionist side that things can only get better. This deal is not perfect; deals never are. It is a comprise; all deals are compromises. The Good Friday agreement was a compromise; the St Andrews agreement was a compromise. If we are to look at that Good Friday agreement, which is quoted all the time in the Command Paper, the two big issues that come out are the principle of consent and parity of esteem. The unionist argument over the last couple of years has been on both those issues: that the consent across Northern Ireland was not there with regard to the arrangements on leaving the European Union and, as a consequence, the parity of esteem was not there.
However many statutory instruments this House or the other House agrees, the union is safe, not because of statutory instruments but because, as the noble Lord, Lord Empey, said, of the people. The people of Northern Ireland by their consent will agree whether to remain in the United Kingdom. When I first came into the House of Commons a long time ago, the policy of the Labour Party was a united Ireland. When Tony Blair became the leader of the Opposition, he changed it and said you could not argue for that; you had to argue for what we agreed in the Good Friday agreement, which was the principle of consent. All this other stuff in the deal, in the statutory instruments, is nothing compared to that basic principle that it is safe so long as the people of Northern Ireland so agree. Even if they did agree to leave the United Kingdom, that would not be easy either but that is for us to consider another day; it is safe at the moment.
This deal—this restoration of the Assembly and the Executive—is about not just strand 1 but strands 2 and 3 as well. If you bring down the Assembly and the Executive, there are no north-south bodies. But strand 2 was an integral part of the Good Friday agreement, which would not have happened without it. The nationalist community had to be satisfied that it was being regarded with parity of esteem as much as the unionists—and strand 2 did that. I do not have many questions for the Minister, but I will ask this: what precisely will happen with regard to the North/South Ministerial Council and the north-south bodies as a consequence of the restoration of the institutions of strand 1?
I will make the point that the noble Baroness, Lady Ritchie, powerfully made: in all this argument over the last two years, the nationalist point of view has inevitably taken second place because, to get this agreement, we had to get the unionist parties on side with the protocol. This has meant that there has been a gap in looking after the interests of that other community—and, as the noble Lord, Lord Alderdice, said, the increasing number of people in Northern Ireland who do not identify with either. That is not insignificant: if you look at the figures, there are 27 members of the Assembly from Sinn Féin, 25 from the DUP and 17 from the Alliance Party. That would have been impossible in the days when I was a Minister for Northern Ireland. It has changed dramatically, so we have to take that into account.
I make a plea that I think everybody here and in Northern Ireland would make: we do not want this to happen again. Sinn Féin brought the Assembly down for three years. The DUP walked out, and that meant that the Assembly went down for two years. That is five years altogether without a Government. There has to be a system, agreed by the parties in Northern Ireland, that will never let that happen again.

Lord Caine: My Lords, I thank all those who contributed to this brief debate. I will endeavour not to keep us much beyond midnight. I jest—but, in all seriousness, if there is one thing that I think we can all agree on, it is that this debate has demonstrated once again the importance of Northern Ireland to all of us who have contributed, no matter where we stand on the deal, the Command Paper or these statutory instruments. We all care immensely and passionately about Northern Ireland and its future, and that is shared right across this Chamber. I am particularly grateful for the comments of the noble Lord, Lord Murphy of Torfaen, and the noble Baroness, Lady Suttie, and for their general support for the regulations. I am grateful for their kind words about me personally—that is very much appreciated. I am in a position to give the noble Baroness the assurances she sought from me.
The noble Lord, Lord, Lord Murphy of Torfaen, mentioned strand 2 of the agreement. He is absolutely right that it is a three-stranded agreement in which all parts are interlocking and interdependent on each other. We look forward to an early meeting of the North/South Ministerial Council, and I look forward  to the First Minister and Deputy First Minister of Northern Ireland taking up their seats once again when the British-Irish Council next meets to carry out its important work. The restoration of strand 1—the Assembly and the Executive—which I think most of us in this House support, makes possible the proper functioning of the agreement once again in all its dimensions. I say that conscious that a number of noble Lords present were instrumental in the reaching of that agreement back in April 1998.
I also commend what I thought was an outstanding and typically learned contribution by the noble Lord, Lord Bew. I also commend many of the wise words of the former First Minister of Northern Ireland, the noble Baroness, Lady Foster of Aghadrumsee, and I very much welcome the tone of the contribution from the noble Lord, Lord Hay of Ballyore, from the DUP Benches. I very much welcome the fact that the DUP has decided, under the leadership of Jeffrey Donaldson, to go back into the Executive. It is a matter of record that we did not think it was the right move to pull out of the Executive. For the record, we did not agree with Sinn Féin coming out of the Executive between 2017 and 2020.
I agree with the noble Lord, Lord Alderdice, and my noble friend Lord Empey that bringing down the institutions in order to get one’s way is not the right way forward—we probably need to look at how, again agreeing with the noble Lord, Lord Murphy, we can make the institutions more robust and resilient in future, although that is necessarily a conversation that would have to take place with Northern Ireland’s political parties. I agree also with the comments of the noble Lords, Lord Hain and Lord Murphy, and my noble friend Lord Empey about the importance of a functioning Assembly for the strength of the union. To me and others, it seems that devolved power-sharing is the surest foundation for the governance of Northern Ireland within the United Kingdom.
I put something on the record, for the avoidance of any doubt, and state once again that the Government are steadfastly committed to upholding the Belfast agreement in all its parts—all three strands—including the undertaking to deliver for everyone in Northern Ireland, no matter their community background or their political aspirations. We are committed to governing in the interests of the entire community in Northern Ireland: I hope that reassures the noble Baroness, Lady O’Loan, and others who raised the point about impartiality and parity of esteem, that we are committed to governing in the interests of the whole community. The UK Government recognise and respect the legitimacy of different constitutional ambitions for the people of Northern Ireland, although our clear preference, and mine personally, is very strongly for the union. I should add that nothing in the agreement prevents the United Kingdom Government having a view about the future of the United Kingdom.
The agreement is also explicit that any change to the constitutional position of Northern Ireland would require the consent of a majority of its people. At present, our view is that there is no evidence to suggest that a majority of people in Northern Ireland wish to separate from the United Kingdom. The restoration  of the Northern Ireland Executive is an enormous achievement by my right honourable friend the Secretary of State, the Prime Minister and others. It is right that we now give the Executive sufficient space to focus on delivering for the people of Northern Ireland without, if I may say so, other constitutional distractions. I agree also with what the noble Baroness, Lady Foster of Aghadrumsee, said about joint authority: that is clearly not something that this Government would countenance—either de facto or de jure, I say in response to the noble Lord, Lord Alderdice. The agreement is very clear that there are two constitutional outcomes for Northern Ireland: one is to remain part of the United Kingdom; the other is to be part of a united Ireland. Our preference is strongly for the United Kingdom, but of course we abide totally by the principle of consent which is in the 1998 agreement.
It has been a very long debate and a number of Members on the Benches behind me set out their opposition to the Command Paper in terms that are well known—and indeed the position, if I can say it gently, of some other members of their party in this respect. At this stage, if I were to answer every question that I have been asked this evening, we would be here beyond midnight. Therefore, if noble Lords will be so kind, I will take away the very detailed and technical questions that were asked of me and commit to writing in detail, with full answers to each of the points raised.
I place on record the Government’s view that this legislation ensures that Northern Ireland’s constitutional status within the United Kingdom is put beyond any shadow of a doubt. The presumption of automatic alignment with EU goods law is ended; Northern Ireland’s access to the UK internal market is safeguarded; treaties that might create barriers within the UK’s own internal market are prohibited; Bills that are put before this House that impact trade with Northern Ireland will be rigorously screened; the operation of a consent vote in the Assembly is enshrined; and action by public authorities consistent with protecting the UK internal market is ensured.
As a number of noble Lords made clear, the important point that we should not lose sight of is that these regulations help to deliver a power-sharing devolved Government in Northern Ireland, serving all parts of the community with parity of esteem. As I said earlier, a functioning Northern Ireland Executive working  with the UK Government is the surest foundation for Northern Ireland’s stability and its future as part of our United Kingdom. The Government believe that the new Executive provide fantastic new opportunities for Northern Ireland to take advantage of its place within our internal market and of its privileged access to the EU single market. It is already a fantastic place for business and investment, but it could become even more so as a result of the arrangements we have in place. I heard that at first hand when speaking with a number of businesses and potential investors in Boston and New York last year, on foot of the Northern Ireland Investment Summit that took place in Belfast and Hillsborough in September.
I am conscious of time. I promise to write in great detail to noble Lords. In conclusion, Northern Ireland has enormous potential. It is our view that Northern Ireland’s potential can be realised, and that Northern Ireland can move forward as a place where politics now starts to work, where the economy grows and where society is more united and strong. As my noble friend Lord Empey said, the imperative for any unionist now has to be to make Northern Ireland a place where more people want the union than oppose it.
On that note, it is with the greatest confidence in the future for Northern Ireland as an integral part of the United Kingdom that I beg to move.
Motion agreed.

Windsor Framework (UK Internal Market and Unfettered Access) Regulations 2024
 - Motion to Approve

Lord Caine: Moved by Lord Caine
That the draft Regulations laid before the House on 31 January be approved.
Relevant document: 12th Report from the Secondary Legislation Scrutiny Committee. Special attention drawn to the instrument
Motion agreed.
House adjourned at 10.43 pm.